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The government of India has recently come up with a new set of rules and regulations to regulate social media platforms, messages, services, Over the Top (OTT) platforms and news portals. The GOI had notified on 25-02-2021, the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021(Rules) in exercise of power under Section 87 of the Information Technology Act, 2000. It supersedes the previous Rules of 2011 which was holding the field. The President of India had issued Notification under Article 77 (3) of the Constitution of India on 09-11-2020 amending the GOI (Allocation of Business) Rules, 1961 which granted Minister of Information and Broadcasting, GOI the powers to regulate online new platforms and other OTT platforms. It shall come into force from the date it is published in the Official Gazette..
These rules will require compliance even by foreign tech-giants operating in India such as WhatsApp, Facebook, Tweeter, Netflix, Amazon, etc. The rules provides for physical presence, monitoring of harmful contents, tracking down the first originator of mischief and the voluntary verifications of users. It provides for grievances redressal mechanism with a self regulatory body. The rules also necessitates significant social intermediaries to have physical contact address in India, which is a significant implication for foreign players in terms of setting up infrastructure and deployment of resources and taxations. Social media intermediaries are now required to deploy technology – based measures, including automated tolls to identify information that depicts rape, child sexual abuse or conduct or information that has previously been removed. The rules provide a mechanism for verification of user accounts, e.g. through mobile numbers. The verified users are to be identified by a demonstrable mark such as a tick or dot. A significant social media platform upon being asked by a Court order or order of the Government under Section 69 of the Information Technology Act will be required to disclose the first originator of mischievous tweet or message as the case maybe. However, this should be only in relation to sovereignty and integrity of India, the security of the state, public order, relations with foreign states, rape, sexually explicit contents and the likes. A three level grievance redressal mechanism has been established under the rules with two levels of self-regulation. The Level –I comprise the publisher, Level –II comprise the self regulatory body and the Level –III is the oversight mechanism under the Ministry of Information and Broadcasting, GOI. The OTT platforms shall employ Chief Compliance Officer, Nodal Contact Person and a Resident Grievance Officer. They are duty bound under the rules to examine all complaints in a time bound manner. The self regulatory body shall be headed by a retired Judge of the Supreme Court or of a High Court or a person of eminence from the relevant field and can issue advisories to the publishers. There will be self classification of content for OTT platforms including parental lock for content classified as U/A 13 + or higher. However, in the recent order of the Hon’ble Supreme Court in the Anticipatory Bail plea of India Amazon Prime head Aparna Purohit in the Tandav case, the Apex Court had opined that the Rules of 2021 may not be effective as they lack penal provision and have no teeth. The Supreme Court had asked the Government to consider framing more stringent legislation or regulation.
The identification of users, the disclosure of “first originator of mischief” and monitoring of access to information by the Government are matters of grave concern for all users, keeping in view the right to privacy and the freedom of speech , expression and thoughts. Though the verification by user is voluntary under the Rules, it may still be a setback for user’s privacy. A platform’s use of personal information provided by the users are subject to the platform’s private policy and to which normally the users have no option but to consent. Also, information provided by the user for verification will simply become part of the data under the platform policy that platforms are entitled to collect and use. Such identification of a user brings into question the end-to-end encryption offered by services such as WhatsApp, Telegram, Signal etc. Whether, the crucial issue of identifying a user as the “first originator of mischief information” accurately by the platforms are practically possible or not? It may be a toll to harass the innocents. The self regulatory body is not an independent body. The body shall be under the administrative control of the Government of the day and which is crystal clear from the fact that under oversight mechanism – Level –III, the Government shall designate an Officer not below the rank of a Joint Secretary, as the authorised officer for the purpose of issuing direction for blocking for access by the public any information generated, transmitted, received, stored or hosted in any computer resource under sub-section (1) of Section 69A of the Information Technology Act. Also, the grievance redressal mechanism is executive in nature. It raises serious questions about the Government monitoring and regulating the social and digital media, keeping in view the political ideology, program of the Government of the day. It may be a deterrent to freedom of speech and expression. Digital media has given a voice to the common people to express their opinions and grievances to the Government of the day. In a democracy governed by the rule of law, their voices should not be muzzled under the garb of regulation. There should be a guaranteed check and balance subject to reasonable restrictions as provided under the Constitution.
Taka Masa Ao