In February 2021, the Government of India issued a notification called the Information Technology (IT) (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These Rules instruct the sizeable social media companies with over 50 lakh users to comply with the new regulations within three months. Obviously, companies like Facebook, WhatsApp, Instagram, Twitter, and many others who fall under the purview of this category, as such are yet to comply with this Order, failing which they lose their “intermediary status”. The three-month timeline ended on May 26, 2021. This article will critically analyze and provide an in-depth analysis about the new Rules, answer some common doubts, and how it affects the Indian users and big businesses established in India.
What are the new IT Rules all about?
The notification issued by the Government, states that the social media platform are absolutely welcome to conduct their business in India, but such platforms will have to follow the laws and regulations of India accordingly.
What is the intermediary status?
An intermediary is a third party that offers mediation services between two parties. It means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify, or access information using its services. The intermediary status applies to the legal status of a particular company, because of which companies like Facebook or Instagram, etc. are not held liable for someone posting on their platform. Stripped of that they basically become publishers and can be held liable. While this seems like a good thing it can also be troublesome. Here is how: Anyone who takes offense by content posted can sue the person and the platform. These platforms would then be compelled to remove or even ban content that could offend people. Thereby, curbing free speech and fair communication.
Can the Indian Government enforce such Rules?
Yes, Section 87 of IT Act 2000, empowers the government to do so. Similar provisions were prevalent under IT (Intermediary Guidelines) Rules 2011 which now stands replaced. The new Rules wants to balance the regulation of internet platforms. Social media platforms empower ordinary users but need accountability against misuse and abuse.
Reasons cited for enforcing the new Rules:
The disturbing developments that have taken place in the arena of the internet. Further concerns were raised on same and the rampant abuse of social media platforms, some of which include:
- Circulation of bogus news,
- Abuse of social media,
- Circulation of obscene content,
- Contents that threatens the dignity of a woman,
- Anti-national activities,
- Committing financial fraud,
- Any content harming communal harmony,
- Digital Users are numerous – hence, it is rational.
The Indian Government has stated that the reforms will improve “transparency” about social media activities. The dire need for regulations concerning social media is not just a debate in India but worldwide. Since nobody seems to do anything about it. The Indian Government deemed it right to overstep in this regard.
A contentious clause in the IT Act Rules 2021, additionally mandates that platforms that provide messaging services, for example, WhatsApp, identify the first originator of the information.
Why is this problematic?
WhatsApp contains end-to-end encryption, meaning that even WhatsApp cannot and does not have the authority to access the user’s personal messages. Under the rules, the “First Originator or Traceability” provision suggests removing the “end to end encryption”. This way the necessary authorities know exactly who, when, and where is propagating false news and will be able to track the originator of the message.
Social media platforms have become lifelines for thousands of Indians during the pandemic. They are also platforms that provide circulation of news that mainstream media does not cover. Which makes it necessary that these platforms maintain distance from government involvement. Social media companies have asked for a six-month extension to put other measures in place and attempt to meet the government’s new requirements.
Is freedom of speech and expression, violated? Yes, to some extent. Will “privacy” be a major concern to users across the country? Yes. How? One being the traceability clause and breaking the encryption clause. Second, is the unwarranted involvement of the Ministry in the internet regulations platforms. The government seems to welcome social media giants and restrict and limit their activities at the same time. Whilst one part of the new IT Rules 2021 improves the much-needed comprehensibility in regulating cyber activities. For example, sexually explicit content, content that harms children and women, threatens the security of India, and content that might be racially or ethically objectionable. Thet provides the Ministry enormous powers – one to name would be the “emergency blocking other part is the proposed framework the “emergency blocking powers” (not enforced) meaning blocking the platform altogether.