On February 25, the Indian Ministry of Electronics and Information Technology (MeitY) released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. As per these rules, “significant social media intermediaries”, which the rules define as a platform with over five million users, have been given much larger powers to take down content that violates Indian laws. Consequently, this newly-added category of intermediaries, which includes major tech giants like Facebook, Twitter, and WhatsApp, will now have to increase self-regulation and work more closely with the government to ensure that the content on their platforms does not violate the law of the land.
The publication instigated widespread concern amongst experts and users, with commentators highlighting the new regulatory framework’s implication on users’ privacy, freedom of expression, and other constitutionally guaranteed rights. However, a theme that has gone relatively unaddressed, which could have irreversible consequences on the manner in which social media platforms interact with users’ data and rights, is the excessive powers being granted to such platforms, most of which already enjoy a sense of monopoly. Granting them the powers to actively and decisively curb users’ rights and freedoms provides them with unprecedented control over the privacy rights and freedom of expression of their users, which could have long-term and incorrigible impacts on how these platforms interact with users’ content and data.
To begin with, the rules mandate extensive self-regulation via the appointment of a Chief Compliance Officer, who will be responsible for ensuring the users’ compliance with Indian laws and regulations and will further be liable for any failure to do so. In addition, the companies will also be required to appoint a Resident Grievance Officer, who will address any grievances following the platform’s decision to take down content. Prior to the implementation of these new Intermediary Rules, content that was in compliance with the platform’s community guidelines but in violation of the Indian law could only be taken down following a government notification or a judicial order. Now, the power to make the assessment of whether users’ posts abide by Indian laws can be made by these major tech companies, thereby enabling them to make decisions that were previously only granted to the executive or the judiciary.
This ability to detrimentally impact users’ rights is particularly problematic in light of the various allegations been levied against social media platforms for having political biases and shutting down voices that speak out against the companies’ preferred narrative. For example, Facebook has been accused of having a bias towards the Rodrigo Duterte-run government in the Philippines, with whom it has entered into a partnership for underwater cables. On the other hand, leaders from India’s ruling Bhartiya Janata Party’s (BJP) have previously accused Facebook’s policy chief of excessively cracking down on the party’s members and taking down their content. Twitter, too, found itself at the receiving end of criticism by the BJP’s leaders, after refusing to take down content on the farmers’ protests that the government considered to be problematic, thereby flouting a government order and perhaps indicating the platform’s support for the opposition’s narrative. While the righteousness of these moves can be argued, what is clear is that the platforms and those who run them are not free from biases, political and otherwise. Hence, the ability to unilaterally make decisions to effectively curb the users’ political discourse grants intermediaries excessive powers that could potentially change the face of social media usage and the power these tech companies hold.
Previously, these social media companies enjoyed a “safe haven” that exempted them from any liability for content on their platforms. Now, by mandating the removal of such content, this protection has effectively been vitiated. In addition, following the application of the 2021 Rules, they will also be required to take down content within 36 hours of receiving a notice from the government, hence forcing them to expedite their assessment of any contentious content.
By imposing an excessive burden for content that is merely being hosted on their platform, the companies will likely be pushed into practising excessive caution, by taking down content as a precautionary measure and increasing content-filtering to avoid facing legal action by the government. This is known as the “chilling effect” and has been proven to greatly erode users’ of freedom of speech in countries like China and Pakistan, where the “safe haven” provided to social media companies is virtually non-existent.
Most of the evils sought to be targeted by the new rules (such as child abuse, revenge porn, copyright infringement, gambling, racial discrimination, and identity theft) have already been extensively addressed in Indian laws through the Indian Penal Code and the Informational Technology Act. The issue lies with the lack of expeditious enforcement of these existing laws. Hence, a more reasonable and less restrictive solution to these issues would be to set up a specific body, like a judicial tribunal, which could primarily look into crimes and illegal activities conducted through the internet. This approach would simultaneously secure users’ legal and constitutional rights by mandating a judicial assessment of their posts and their compliance with the law. Moreover, by setting up a redressal mechanism that is separate from the Indian courts, it will also ensure that these crimes, which often require urgent attention, are not lost in the overburdened judicial machinery.
That being said, the 2021 Rules do address the significant issue of misinformation and disinformation that has otherwise been overlooked by existing laws. The new regulations require tech companies to ensure the traceability of the origin of content by storing data for six months for investigative purposes. Through this, the rules seek to find the creator of the illegal content to hold them individually liable. Given the tangible and harmful impact of fake news on Indian society, which has resulted in mob lynchings and large-scale violations of social distancing norms, the calls for tracing the origins of posts appear to be rightly placed.
Nevertheless, this, too, dangerously expands the powers of social media platforms and threatens to cause irreversible damage to the way users’ data is handled by such intermediaries. By requiring social media platforms to trace the origins of messages, it effectively brings an end to end-to-end encryption, which platforms like WhatsApp, Telegram, and Signal use to ensure the users’ data is only shared on their devices and not stored on any other server, including on the platform hosting the content. Requiring such platforms to ensure the traceability of content will change the way data is handled by these companies. Apart from making personal content susceptible to being submitted to authorities for investigations, this will also allow social media platforms to store and use the data for advertising. More concerningly, by allowing storage of data on external servers, the policy also makes users’ content vulnerable to hackers, code injection attacks, and other forms of cyberattacks by miscreants and foreign entities.
India is not alone in its move to make social media companies more responsible for the content on their platforms. Similar calls have been seen in the United States, the United Kingdom, Australia, and even the European Union, which has one of the most robust legal frameworks for data protection. Therefore, India’s Intermediary Rules may just be a minor step towards a larger worldwide overhaul of the way social media platforms interact with society. However, in making these monumental changes, the rights of the users and the need to protect the citizens’ data must be prioritised. Failing to do may result in legal consequences that not only make the society vulnerable to threats by miscreants but also vitiate crucial democratic principles that form the core of several societies.
India’s New Intermediary Laws Give Social Media Companies More Power Than Necessary
Apart from the new rules’ impact on the users’ right to privacy and freedom of speech, they also expand the powers of social media companies to concerning new highs.
March 4, 2021
SOURCE: ELETS ONLINE