The central government has started a fresh round of discussions for a completely new IT law to deal with current and future situations. According to officials, the new law will “subsume” rules like the setting up of a grievances redressal and compliance mechanism, and officers. There may be some changes to remove any criminal liability on the grievance and compliance officers appointed by the intermediaries. The new law will also define various forms of online sexual harassment and lay down clear guidelines on punishment for these offences. It will also increase the onus on intermediaries for the content present and posted on their platforms. Moreover, a strict “age-gating” policy, which will require the consent of parents when children sign up for social media websites, will also be included in the new Data Protection Law.
On February 25, 2021, the Ministry of Electronics and Information Technology of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in exercise of powers under Section 87 (2) of the Information Technology Act, 2000, and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011. The new rules apply to digital news media platforms, social media intermediaries and OTT platforms, bringing all digital media functionaries under a three-tier oversight mechanism for regulation of content.
To encourage innovation and enable the growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirements, the new rules make a distinction between social media intermediaries and significant social media intermediaries. This distinction is based on the number of users on the social media platform. The government is empowered to notify the threshold of the user base that will distinguish between social media intermediaries and significant social media intermediaries. The rules require the significant social media intermediaries to follow certain additional due diligence.
Rule 4(2) covers the “identification of the first originator of the information”. The extent of the first originator is limited to India—“Provided further that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information”.
Rule 4 (1)(a),(b), & (c) of the guidelines requires the appointment of a chief compliance officer, a nodal contact person and a resident grievance officer.
Intermediaries include a vast array of entities that facilitate the flow of data on the internet. These include telecom service providers, internet service providers, search engines, online marketplaces, payment sites, cyber cafes, messaging services, and social media sites. The intermediaries remain insulated from liability unless they are aware of the illegality and are not acting adequately to stop it. They are subject to duties of care and notice and take-down obligations to remove illegal content. The Constitution allows for certain reasonable restrictions with respect to freedom of speech and expression on grounds, such as national security, public order, decency, and morality.
The apex court (2015) has held that a restriction on speech, in order to be reasonable, must be narrowly tailored so as to restrict only what is absolutely necessary. It also held that a speech can be limited on the grounds under the Constitution when it reaches the level of incitement. Other forms of speech even if offensive or unpopular remain protected under the Constitution.
On December 11, 2018, in relation to the Prajawala case, the Supreme Court observed that “the Government of India may frame the necessary Guidelines/SOP and implement them within two weeks so as to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications.”
Various issues have been pointed out with the rules such as restriction of free speech, requirements such as automatic identification and removal of content, and lack of elaboration on how the five million users will be calculated. The Centre for Internet and Society has raised concerns with the draft rules and asked for changes so that draft Rule 3(2), Rule 3(4), Rule 3(5) and Rule 3(10) are completely deleted. A joint letter written by a group of experts from research, academia and media, including Faisal Farooqui, Karma Paljor, Nikhil Pahwa, Shamnad Basheer, and professors from IIM Bangalore and IIT Bombay and organisations, including Free Software Foundation Tamil Nadu, Free Software Movement of India, Free Software Movement Karnataka and Software Freedom Law Centre, India, to Ministry of Electronics and Information Technology (MeitY) has pointed out various issues that the new rules could raise such as the traceability requirements interfering with the privacy rights of citizens.
Immediately following the publication of the rules, a number of platforms advised caution. Petitions have been filed challenging the rules with respect to the digital news media. On May 25, 2021, the last day for intermediaries to comply, WhatsApp sued the government of India over the rules which have challenged clauses requiring the originator of a private message to be traced, news publishers and broadcasters, who have said it violates the fundamental right to free speech. The Ministry of Electronics and Information Technology, described the action as a “clear act of defiance”.
On July 5, 2021, the government released a statement claiming that Twitter had lost its liability protection concerning user-generated content. This was brought on by Twitter’s failure to comply with the new rules with a filing stating that the company failed to appoint executives to govern user content on the platform. In July 2021, the Press Trust of India moved the Delhi High Court over the rules.
While proliferation of social media empowers citizens, it also gives rise to some serious concerns and consequences which have increased in recent years. These concerns have been raised from time to time in various forums, including Parliament and its committees, judicial orders and civil society in different parts of the country. Such concerns are also raised all over the world and it is becoming an international issue. Persistent spread of fake news has compelled many media platforms to create fact-check mechanisms.
News channels are required to follow the Programme and Advertising Codes laid down under the Cable Television Networks (Regulation) Act, 1995. In respect of print media, the Press and Registration of Books Act, 1867, provides for registration of publications, including newspapers. The Press Council of India, under the Press Council Act, 1978, has powers to conduct enquiries on the basis of complaints and take suitable action, including warning, admonition and censorship.
The Digital India programme has now become a movement which is empowering common Indians with the power of technology. The considerable spread of mobile phones, Internet, etc has also allowed many social media platforms to expand their footprint in India. Common people are also using these platforms in a very significant way. Social platforms like WhatsApp, YouTube, Facebook, Instagram and Twitter have enabled common Indians to show their creativity, ask questions, be informed and freely share their views, including criticism of the government and its functionaries. India is the world’s largest open Internet society but it will have to be accountable to the Constitution and laws of the country.
—By Shivam Sharma and India Legal News Service