Will Facebook, Twitter, Instagram be banned in India? New IT Rules and Regulations

Will Facebook, Twitter, Instagram be banned in India? New IT Rules and Regulations

Author: Meenakshi Dixit

college name: Banasthali Vidyapith

Introduction

The question of social media platforms such as Facebook, Twitter, Whatsapp, Instagram and so on arises after the non-compliance of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on February 25, 2021. These guidelines were passed in exercise of powers under section 87(2) of the Information Technology Act, 2000, superseding the earlier 2011 Intermediary Guidelines. The government has strictly laid down that these guidelines were to be implemented by the social media platforms within the window of 3 months. The deadline, thus expires on 26th May, 2021, and these social media intermediaries such as Twitter, Facebook etc have not complied with them. KOO, is the only homegrown microblogging platform, which has complied with these guidelines. However, the spokesperson of Facebook argues that they want some more time up to 6 months and support of the government for compliance with the guidelines.

Extensive Spread of Social Media Intermediaries

As of February 2021, it is calculated that India retains 530 million users of Whatsapp, 448 million Youtube users, 210 million Instagram users, 410 million Facebook users and 17.5 million twitter users. It is also estimated that there are 140 million tweets per day, 250 million photos are posted on Facebook per day and approximately 48 hours of video are uploaded every minute on Youtube. Therefore, the widespread social media coverage is evident from the available data. And specially at the undergoing scenario, people are highly reliant on social media intermediaries and internet service providers for their everyday activities.

Social media platforms are also effective in communicating critics and reviews as well as asking questions. Further, the current proliferating usage of digital media and OTT platforms have started posing new problems as their system of functioning is much different from theatre and television. The increasing reliance on content (written, audio, video etc) of such media platforms have also mandated the need for providing robust redressal mechanism to ordinary users.

Background and Evolution of Safe Harbour to Intermediaries

The term Intermediaries is extensively used in the Information Technology Act, 2000. Section 2(w) of the act defines intermediaries. It basically refers to the entities that act as a facilitating link enabling the delivery of online content to the end user. There are numerous intermediaries involved in this chain including (Intermediaries, users and the law-Analysing Intermediary Liability and IT Rules, 2012)-:

• The Internet Service Provider (ISP) such as Airtel, MTNL, etc connecting the user to internet by wired or wireless connections.

• Search engines such as google, Morzilla Firefox that may provide links to websites having relevant content.

• DNS Provider translating the domain names to addresses that can be understood by

computer.

• Interactive Websites such as Facebook, twitter etc that help in providing a range of

contents, and also in posting and storing blogs and so on.

In the case Avnish Bajaj v/s State1, the prominent appeal to amend the IT Act,2000 was raised

so as to protect intermediaries from liability on account of user generated content. In the present

case, Avnish Bajaj, CEO of an auction portal namely, Baazee.com was arrested on charge of

putting obscene clip, on website by a user. It showed the risk that although the content was not

posted by intermediaries, still they could be made liable for offences of their user.

Therefore, the governments of various countries such as US and some other European nations

provide protection to intermediaries eliminating any kind of liability on user generated content.

Such protection is known as the “safe harbour protection”.

The amended section 79 of the IT Act provides that intermediary shall not be liable for third

party information, data and all. However, in such a case, the intermediary must not initiate he

transmission, modify the information etc and should act diligently according to directions of the

act. There is also a provisio stating that where the intermediary has abetted or aided or induced

by threats or otherwise, or upon receiving actual knowledge about such data or communication

link, fails to remove or disable such unlawful material, he would not be entitled to protection

under the act.

The unlawful content includes all harmful, harassing, blasphemous, instigator, hateful, obscene,

pornographic, defamatory, and such other matters. The rules under 2011 guidelines makes it

obligatory on the intermediaries, not the originator to remove a disputed content within 36 hours

of receipt of the complaint. In case they don’t remove such content, they will be disentitled from

protection under the abovementioned section.

Rationale and Objectives of the New Guidelines

The cause of action for this case arose from the direction of supreme court in a suo motto writ

petition (Prajwala case2) to eliminate child pornography, rape imageries and such other

applications. The Ad-hoc committee of Rajya Sabha laid in its report3 dated 03/02/20204 the

misuse and harmful effects of social media on children and society as a whole.

Further, it was also observed that with innovations in social media, the intermediaries have

turned to be publishers as well, creating need for some regulatory framework. Sometimes, it was

found that a user’s social media profile has been removed without giving him any opportunity to

be heard. Also, in respect of news and current affairs, the publishers are expected to follow the

Journalistic Code and Conduct of Press Council (India, 2010), and also the Television Network

Act5.Therefore, a need was felt to provide unambiguous and transparent mechanism for social media intermediaries.

Salient Feature of Guidelines Related to Social Media Intermediaries

The rules are prescribed in parts. The 2nd part is to be governed under the Ministry of Electronics and Information Technology (MEITY). It mandates that the social media intermediaries must exercise due diligence, failing which will disentitle them from protection under safe harbour.

The most emphasized feature of these guidelines is the grievance redressal mechanism. It seeks to establish a three-tier redressal system, by directing all the social media intermediaries to appoint a grievance officer, nodal officer, compliance officer etc. Following is a brief description of their work

Chief Compliance Officer- He would be responsible to ensure proper compliance with the act and rules by being resident in India.

Nodal Contact Person- He is also required to be resident in India. He is to maintain coordination with law enforcement agencies for 24x7.

Resident Grievance Officer- he is to perform the functions given under Grievance redressal mechanism. He shall acknowledge the complaint within 24 hours and try to resolve it within 15 days from the receipt of complaint.

Therefore, these rules tend to eliminate the difficulties faced by ordinary users in contacting the giant social media companies who mostly have their offices and boards abroad. Thus, they also mandated that major social media intermediaries (with users above 50 lakh) would have to provide physical contact address in India published on its website.

Ensuring Online safety and Dignity of Users- It mandates the intermediaries to remove or disable access to such content that exposes private areas of individual within 24 hours of receipt of complaint. There is also a categorization between two types of social media intermediaries, namely social media intermediaries and significant social media intermediaries. The latter would have to observe certain additional diligence, as notified by government on the basis of user threshold.

Publish a Monthly compliance report mentioning data about number of complaints received and action taken to resolve them.

Identification of First Originator of Information- it is required for the purpose of prevention, detection, investigation etc for an offence regarding sovereignty and integrity of India, friendly relations with foreign state, incitement to an offence and so on. This may lead to compromising end to end encryption in messaging. However, the rules provide that intermediaries are not required to disclose contents of any message.

Giving Users an Opportunity to be Heard- If the account/ content of a user is disabled by social media intermediary, then a prior information is to be delivered to the user along with a notice mentioning grounds of such action. Thereafter, users shall be provided an opportunity to dispute such action.

Digital Media Ethics Code relating to Digital Media and OTT to be Governed under the Ministry of Information and Broadcasting.

After receiving complaints from civil society, parents, as well as court orders, the government sought to make conscious efforts in order to regulate creative content available on OTT and other digital media. It has also studied the models of countries such as Singapore, Australia, etc.

The government sought to enforce self-regulating mechanism. It directs such platforms to classify content themselves based on suitability, as the OTT platforms are referred to as publishers of online content. Therefore, they would have to classify the content based on five age groups as follows- U6 (Universal), U/A7 7+, U/A 13+, U/A 16+ and A8 (Adult). These platforms would be required to have parental locks for content classified as U/A 13+ and higher. They shall also display the classification rating specific to each content and to provide for efficient age verification mechanism. It is also advised to provide viewer description (if applicable) at the beginning of program.

And most prominently, the self-regulation mechanism enables a three level efficient grievance redressal system.

Level I- Self Regulation by Publishers requiring the appointment of a grievance redressal officer who shall be responsible for dealing with the complaints within 15 days of their institution.

Level II- Self Regulatory Body- The self-regulatory body of publishers shall be headed by retired judge of supreme court, high court or independent eminent person with members not more than 6. It will be entrusted with the responsibility to oversee adherence by publisher to the code of ethics.

Level III- Oversight Mechanism- The ministry is responsible to provide such oversight mechanism by publishing charter for self-regulating bodies, and also for establishing inter departmental committee for redressal of grievances.

Apprehensions of Users and Social Media Intermediaries

It is found that despite the unprecedented effort of government to regulate such digital platforms, there are various negative apprehensions among the users. Some experts have said that implementation of these guidelines without passage of Personal data protection bill, will lead to removal of system of checks and balances.

The draft of personal data protection bill, 2019 was tabled on 11 December, 2019 by MEITY. It defines personal data as relating to natural person who is directly or indirectly identifiable, having regard to any characteristic, trait etc.

Therefore, it raises apprehension that by providing for identification of originator of information, the government would have more control over the data of citizens and such scenario in absence of enforcement of personal data protection bill, would make them feel insecure. Therefore, it invokes the privacy concerns of users. Many of them demand passage of this bill before implementing these guidelines because it provides for punishments for non-compliance of requirements by data fiduciary and classifies their data according to level of protection needed.

Conclusion

It brings out the conclusion that the guidelines are certainly beneficial for public interest as a large segment of population now relies on such digital media platforms. However, it is also important to oversee the regulations are aptly followed to enable freedom of speech and expression alongside keeping in mind the code of morality and ethics. The regulations should be implemented such as not to deny creativity in content.

1 116 (2005) DLT 427

2 (2015) 17 SCC 29

3 The Study of Alarming Issue of Pornography on Social Media and its Effect on Children and Scoiety as a Whole

4 Presented to Chairman on 25/01/2020; Tabled on 3/02/2020;

5 Cable Television Networks (Regulation) Act,1995

6 Unrestricted Public Exhibition

7 Unrestricted Public Exhibition Subject to Parental Guidance

8 Restricted to Adult Audiences

REFERENCES

• https://prsindia.org/billtrack/the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

• https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary

• https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749

• https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

• https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

• https://prsindia.org/billtrack/the-personal-data-protection-bill-2019

• https://www.pwc.in/consulting/cyber-security/data-privacy/personal-data-protection-bill-2019-what-you-need-to-know.html

• https://thewire.in/tech/data-protection-law-india-right-to-privacy

• https://sflc.in/sites/default/files/wp-content/uploads/2012/07/eBook-IT-Rules.pdf