By Mohammed Asif
Published On: December 27, 2021 at 14:00 IST
Introduction
The Central government’s Ministry of Electronics and Information Technology has announced the Information Technology (Intermediary Guidelines and digital media ethics code) Rules, 2021. The notification by the Ministry of Electronics and Information Technology has imposed numerous restrictions on numerous social and digital media platforms which are to bring all the social media platforms within the ambit of the constitution of India.
The government also stated that social media platforms can certainly be used for asking questions and criticizing but users need to ensure accountability against its misuses and abuses. So, the government brought these rules about social media platforms and digital media platforms as well as OTTs to focus more on in-house and self-regulation mechanisms. By which a strong grievance redressal mechanism has been provided by keeping in view the journalistic and creative privilege.
The Information Technology ministry also backed these rules stating that they are progressive, liberal, and contemptuous. It also said that this framework is made keeping in mind all the differences between viewership in a theater and television.
Why government imposes such rules?
We have seen very disturbing moments on social media platforms. The continuous spread of false news has made many media platforms make fact check mechanisms. Widespread abuse on social media by sharing morphed images of women and content related to Image-Based Sexual Abuse (IBSA)have often endangered the dignity of women. And one of the major concerns for businesses is to misuse of social media by criminals, anti-nationals’ elements have brought new challenges for law enforcement agencies.
The government has said that the lack of clarity and absence of strong grievance redressal mechanisms have left the users dependent on the rationales of the social media platforms over a few years. And it has also been seen that a user who spent his time, enlarge, money in developing a social media account has been left removed or restricted by the platform without being allowed to be heard. So as there is no current robust grievance redressal mechanism the government says that these new rules of Information Technology will help the users of social media, and OTT platforms when they can register their complaint and can get redressal within no time.
The Ministry of Electronics and Information Technology and the central government justify the newly passed guidelines by saying that these rules substantially empower the ordinary users of digital platforms to ask for redressal for their complaints and maintain responsibility in case of violation of their rights.
What are internet intermediaries and their immunities?
For suppose if there is a company that manufacturers chocolates and delivers its product to a local grocery store and whenever we want to buy a bar of chocolate we go to the local store or the shopkeeper has neither made the chocolate nor are using it. The store manager is just taking the chocolates from the manufacturer or the company and selling them to the people. In such a case the local store is an intermediary.
It is a third party that enables the execution of the deal between two parties, it is because of them there is a deal between the two parties. In such a case one of the example here is Facebook- because through Facebook we can talk with our friends so Facebook acts as an intermediary.
From a legal point of view, the intermediaries have some immunities which were held in one of the famous cases of 2000 i.e., Avinash Bajaj Vs State[i]. In this case, a student of IIT has put an obscene MMS on sale on baazi.com. It was not apparent from the outside that it was an MMS video until we click on it. And when it was pointed out about the MMS baazi.com had pulled out it from their website but the crime branch of Delhi took notice of this matter and filed a charge-sheet against the IIT student who listed the video on the website and added another charge sheet on the owner of the baazi.com website who was therefore accused.
The issue raised before the court that whether a case could be established against the company. Under Section.292 of the Indian Penal Code. the court held that as far as Avinash Bajaj (petitioner and owner of the website) is concerned since the Indian Penal Code does not recognize the concept of the automatic criminal liability adding the director where the company is the accused, the court held that the petitioner can be discharged U/S.292 and 294 of Indian Penal Code. The court logically held that the owner of the website cannot be blamed and it was said that it was unfair to arrest the owner in that case. So due to this reason, the intermediaries have some immunities. That it was not the fault of the platform if a user put some objectional content on it but it is the sole responsibility of the user. And As for the new rules of Information Technology that these immunities that these intermediaries had have been removed to quite an extent.
To whom these new IT rules are going to apply?
For all intermediaries (e.g.- Social media platforms):
- Intermediaries shall follow due diligence.
- Intermediaries should initiate a grievance redressal mechanism.
- Intermediaries must ensure the online safety and dignity of the users.
- Intermediaries shall remove or disable access within 24 hours of receiving the complaints.
- Intermediaries must bring a voluntary user verification mechanism where a visible mark will be given.
- Intermediaries must remove unwanted information upon receiving actual knowledge by a court or being notified by the appropriate government platforms should not host or publish any information which is prohibited.
For significant social media intermediary (e.g.-OTT platforms)-
- To appoint a chief compliance officer.
- To appoint a nodal contact person.
- To appoint a resident grievance officer.
These new IT rules are divided into three parts part broadly:
Part one: This focuses on the definitions and terms of these intermediary rules (preliminary)
Part two: This focuses on social media platforms like WhatsApp, Twitter, signal, Facebook, Telegram
Part three: This focuses on OTT platforms and digital news.
As of the social media platforms, the government has given three months to appoint the Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer.
The chief compliance officer will certify that these new IT rules are in accordance with these social media platforms. The nodal contact person will be uninterruptedly in association with the law enforcement agencies. The Resident Grievance officer will be obligated for taking the user’s complaints concerning these new IT rules. And resident grievance officer’s responsibilities will include admitting complaints within 24 hours and settling them within 15 days.
Effect of these rules on social media platforms
Some experts believe that because of these requirements the tax liability of these social media platforms will increase and due to that many small innovative platforms will be discouraged to continue in India.
According to these new rules every year these intermediaries will have to send reminders to the users at least once in a game that if they do anything illegal their account will be deleted. Additionally, these intermediaries will have to publish a monthly compliance report enumerating the complaints received and those on which action was taken and also the content on the complaint on which the action was taken.
The data retention period has been doubled to six months for investigative purposes. This means that if a user makes an account on a social media platform and subsequently deletes them, even then the social media platform will keep users’ data for the next six months.
Importance of Privacy Policy and Right to Information in India
Right to information and right to privacy are two rights that most of the time consummate each other’s by making executive and government answerable to the individuals, but we can always see the dispute with government bodies when they hold these rights and demand individuals to access their personal information.
The right to information and right to privacy has been given utmost importance by the Indian constitution where under Article 21 right to privacy was contemplated to be inherent in the right to life whereas the right to information acquired the constitutional right of freedom of expression given to all citizens under Article 19(1)(a) of the Indian Constitution.
Not only in India but the right to privacy was also recognized internationally under various declarations and con conventions-
- Under Article 12 of the Universal Declaration of human rights it was said that there shouldn’t be any arbitrary intrusion in individuals’ privacy, home, relationship, affairs, family, and least of all should there be any indirect or direct attack on their dignity honor and reputation of any individual.
- And under Article 17 of the international covenant on civil and political rights, it is said that there should be no arbitrary impression in any individual’s privacy or home.[ii]
Landmark Judgements
In India, the right to privacy was recognized and guaranteed after the judgment of this case under which the concept of data protection also came up. And in this case that the Right to privacy was first acknowledged as a fundamental right under the constitution of India. The court had held that the right to privacy is an integral part of the right to life and personal liberty as guaranteed under Article 21 of the Constitution. Due to this judgment, the Supreme Court interpreted that the Aadhar card is not a violation of the right to privacy, and this judgment overruled the above other judgments where it was said that the right to privacy is not a fundamental right.
- Govind Vs State of Madhya Pradesh[iv]
In this case, it was held by the court that the right to privacy is subject to effective interest, and it was established on the impression that the right to privacy is a fundamental right. And it was held to be an integral part of the constitution under Article 21.
Effect of the new IT rules on Right to Privacy
And one of the most complicated things in these rules is that these intermediaries will have to enable tracing of the originator of the information on their platforms if required by a court of competent jurisdiction or competent authority, it means that if the government wants the data of the originator these platforms will have to provide the information of the first originator. For example- in case of an issue of simple unwanted forward message in WhatsApp who write the WhatsApp chat and where it is originated this information will have to be given by the social media platform to the government if they ask for it, same applies to Facebook posts and Twitter accounts.
Technically it is not possible to do this in WhatsApp and signal apps as they both have end-to-end encryptions (Because of the end-to-end encryption third parties cannot read the messages and it is and if the end-to-end encryption is remote, it becomes possible for any third party to read the messages easily) they themselves don’t know the content and origin of the messages so if the new rules have to be complied with then apps like WhatsApp and signal are told to breach their end-to-end encryption policy which is the threat to our privacy.
Reasons for which the government can force social media platforms to take action
Some reasons are very obvious like sexual content being posted or child abuse has been posted but a few reasons as such that is some content is against “public order”. It is such a broad term that if the government declares that criticizing the government is against public order using such broad terms might be misused very easily by the government.
Recently the government has asked Twitter to ban some Twitter accounts in India and Twitter banned some of them but refused to ban others because there was not a legit reason behind banning them because those were the accounts that were criticizing the government and supporting the farmers protest.[v]
Advantages and Disadvantages of these new rules
There are some good things about these new IT rules. Such as the OTT platform has been told under the code of ethics to self-classify their content into five age categories that are U, 7+, 13+, 16+, and A category. Which is indeed a good thing. Because when we go to watch any content on Netflix or Amazon Prime., one should know how age-appropriate it is and Parental locks have been introduced as well an age classification mechanism has also been introduced. And these OTT platforms and digital news are being told that they have to follow the code of ethics. As per which they cannot put any content which is against the sovereignty and integrity of the country endangers the security of the states which is threatened to the security of the country.
Also, the content is harmful to India’s friendly connections with foreign countries or any such content which stirs up violence. But in the end. They added another phrase that is “Or any content which disturbs public order” What is the actual sense of public order is not defined in the Act but it will be determined by the government, whatever the government thinks justified will be labeled as content disturbing public order which is a very broad term inserted in these new rules that has a considerable chance of being mishandled.
Also, in the Code of Ethics, it is also stated that intermediaries “must take into the notice of India’s multiracial and multi-religious context and exercise due caution when featuring the activities, beliefs, practices or views of any racial or religious classes[vi]”. We all know how often did people have been about every little thing. And one of the complicated things in these new rules. Is that the Ministry of Information and Broadcasting has given “Emergency blocking power” in those cases where no delay is acceptable. But what is the cases where no delay is acceptable is not defined in the act. It’s up to them to name the cases where no hindrance would be acceptable. And the content will be blocked instantly on Twitter., Facebook., And WhatsApp.
Many experts have been pointed out that these new rules will destroy. The rudiments of democracy in our country.[vii]
Conclusion
These new rules of IT brought by the government has very complicated matters to deal with and despite correcting and amending those rules if the government brings the same in the manner of legislation, then it can be a serious threat to many social media platforms and as well as for the individual’s privacy.
Personal data is the data that is detectable to an individual or an organization and assists in spotting their identity. This data cannot be freely distributed by anybody without the authorization of the individual. And data privacy laws are less prioritized in India and a normal prudent individual himself is not aware of the importance of his data. This lack of significance and extremity has led the users to prey to big corporations who utilize these deficiencies and thus misuse the data. But through the landmark judgment of Justice K.S Puttaswamy & Anr. Vs Union of India, the Honorable Supreme Court of India changed the prospect and interpretation of people towards data privacy. This judgment, particularly, raised consciousness and made the people understand that their data is very inherent, significant, and therefore worthy of safeguarding.
And despite such attempts by the Judiciary, no definite law for data privacy exists in India.
ABOUT THE AUTHOR
Mohammed Asif is a Third year Law student pursuing B. A. LLB(Hons) from ICFAI law school, Hyderabad. He is a future lawyer and Lifelong humanitarian who believes in consistency and hard work rather than talent.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
IT Rules:
References
I Kanchan Gosh “Case study; Avinash Bajaj Vs State” (Last Visited on December 27th, 2020)
[ii] Abanti Bose “Right to information Vs right to privacy” (Last Visited on December 27th, 2020)
[iii] Justice K.S. Puttaswamy Vs Union of India AIR 2017 SC 4161
[iv] Govind Vs State of Madhya Pradesh AIR 1975 SC 1378
[v] Sankalp Phartiyal “Twitter says will not fully comply with govt orders to take down some accounts” (Last Visited on December 27th, 2020)
[vi] Ministry of Electronics and Information Technology Notification
[vii] Scroll In newspaper “Explainer: Why India’s new rules for social media, news sites are anti-democratic, unconstitutional” (Last Visited on December 27th, 2020)