Context

The Delhi High Court has recently granted Twitter three weeks’ time to state on record that it has appointed a resident grievance officer and observed that it has to comply with the IT Rules, 2021, if they have not been stayed.

Background

• The new Rules were notified in February this year by the Ministry of Electronics and Information Technology (MeitY) under the Information Technology Act, 2000. They will replace the Information Technology (Intermediaries Guidelines) Rules, 2011.
• Social Media intermediaries were given a three-month period to comply with the new rules.
• The government in May issued fresh notice to all social media intermediaries seeking details on the status of compliance with the new rules that came into effect on that day.
• Companies like Google, Facebook, WhatsApp, Telegram, Koo, Sharechat, and LinkedIn have shared details with MeitY as per the requirement of the new norms.
• Twitter sought an extension of the compliance window and called for a constructive dialogue and a collaborative approach from the government to safeguard freedom of expression of the public.
• WhatsApp filed a case in the Delhi High Court against the government on grounds that the new rules violated customer privacy.
• The new Intermediary Guidelines and Digital Media Ethics Code have also been challenged by entities like The Wire, LiveLaw and The Quint.

IT Act, 2000 The Act provides a legal framework for electronic governance by giving recognition to electronic records and digital signatures. It also defines cybercrimes and prescribes penalties for them. The Act directed the formation of a Controller of Certifying Authorities to regulate the issuance of digital signatures. It established a Cyber Appellate Tribunal to resolve disputes arising from this new law. The Act amended various sections of the Indian Penal Code, 1860, the Indian Evidence Act, 1872, the Banker's Book Evidence Act, 1891, and the Reserve Bank of India Act, 1934 to make them compliant with new technologies.

Analysis

What are IT Rules, 2021?

• The Rules aim to empower ordinary users of social media and OTT platforms with a mechanism for redressal and timely resolution of their grievance with the help of a Grievance Redressal Officer (GRO) who should be a resident in India.
• Safety measures: Special emphasis has been given on the protection of women and children from sexual offences, fake news and other misuse of the social media.
• Source identification: Identification of the “first originator of the information” would be required in case of an offence related to sovereignty and integrity of India.  
• Appointment of Chief Compliance Officer: A Chief Compliance Officer, a resident of India, also needs to be appointed and that person shall be responsible for ensuring compliance with the Act and Rules.
• Complaint monitoring: A monthly compliance report mentioning the details of complaints received and action taken on the complaints would be necessary.
• Code of Ethics: The OTT platforms, online news and digital media entities, on the other hand, would need to follow a Code of Ethics.
• Self-classification: OTT platforms would be called as ‘publishers of online curated content’ under the new rules.
  • They would have to self-classify the content into five categories based on age and use parental locks for age above 13 or higher. They also need to include age verification mechanisms for content classified as ‘Adult’.
• Redressal mechanism: A three-level grievance redressal mechanism has been mandated. This includes the appointment of a GRO, self-regulatory bodies registered with the Ministry of Information & Broadcasting (MIB) to look after the Code of Ethics and a Charter for the self-regulating bodies formulated by MIB.

Grounds for challenge

• While the new rules were challenged by many on grounds of violation of free speech, the government has clarified that these rules permit social media platforms to operate in India freely but with due accordance to the law.
• Every entity has to abide by the Constitution of the country and the Rule of Law.
• Also, as per Article 19 of the Constitution, freedom of speech and expression is not absolute and is subject to reasonable restrictions, especially in case of a threat to national sovereignty and security.
• Failure to comply with any one of these requirements would take away the indemnity provided to social media intermediaries under Section 79 of the Information Technology Act.

Section 79 of the IT Act, 2000 It says any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform. This protection, the Act says, shall be applicable only if the intermediary acts just as the messenger carrying a message from point A to point B, without interfering in any manner. It will be safe from any legal prosecution brought upon due to the message being transmitted. The protection accorded under Section 79, however, is not granted if the intermediary, despite being informed or notified by the government or its agencies, does not immediately disables access to the material under question. The intermediary must not tamper with any evidence of these messages or content present on its platform, failing which it lose its protection under the Act.  Like Section 79 of India’s IT Act, Section 230 of the Communications Decency Act of the US states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

Need for the new Rules

The rules come at a time when the country is constantly striving to ensure the safety and sovereignty of the cyberspace and of personal data.

• Wide coverage: Social media is increasingly becoming an important part of our life.

For example, WhatsApp currently has a user base of 340 million in the country, accounting for the largest number of subscribers in the world, even more than the US. Facebook has 290 million, Twitter 17.5 million, YouTube 265 million and Instagram, 120 million.

• Bundle of issues: With such a huge population dependent on social media platforms, the tech-giants cannot ignore the new and emerging challenges like-
  • persistent spread of fake news
  • rampant abuse of the platforms to share morphed images of women
  • deep fakes and other contents that threaten the dignity of women
  • child pornography
  • threat to security
• Hate speech: Instances of use of abusive language, defamatory contents and hate speech in these platforms have become very common.

Supreme Court’s take on emerging challenges of social media

• In view of such emerging challenges, the Supreme Court in 2018, in the Tehseen S. Poonawalla v/s Union of India case, directed the government to curb and stop dissemination of explosive messages and videos on various social media platforms.
• The Court in 2017 also observed that the government may frame necessary guidelines to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications.
• The new rules are thus in accordance with the previous Supreme Court observations.
• As per the rules, intermediaries are mandated to remove or disable contents that are against the safety and dignity of individuals within 24 hours of receiving of complaints. Such complaints can be filed either by the individual or a person on his/her behalf.
• According to the government, knowing the “first originator of information” (also known as “traceability”) of messages that cause violence, riots, terrorism, rape or threat to national security fall under reasonable exceptions to Right to Privacy - which again is not absolute as per the Constitution.

Technological Hurdles with Respect to Traceability

• Social media companies have expressed apprehensions about the identification of traceability when required to do so by authorities which could possibly lead to the breaking the of end-to-end encryption and can compromise users’ privacy.
• The government, however, has stated that traceability would only be required in case of “very serious offences” that threaten the sovereignty and integrity of India.
• Further, it could also be implemented without breaking the end-to-end encryption.
• The onus, however, will lie on the companies to find a technological solution for the same.

Conclusion

The imperative of striking the right balance between fundamental rights and ascertaining the reasonableness of a restriction has been a constant effort since the adoption of the Constitution.

The debate has now reached the digital world. The on-going tussle between private, tech giants who own a substantial amount of Big Data, governments desirous of imposing reasonable restrictions and users worried about issues relating to data privacy and constraints on freedom of speech and expression is likely to get more complicated before optimum solutions can be arrived at.

The IT Rules 2021 seek to address concerns of the citizens without infringing on their privacy and personal liberties, while maintaining digital sovereignty at the same time.