Social Media - New Rules & implications: RSTV - Big Picture

Rajya Sabha TV programs and discussions are very insightful and informative from a UPSC perspective. In this article, we provide a gist of the RSTV Big Picture debate on the new social media rules. This topic is important for several subjects under the UPSC syllabus such as polity, governance, science & technology, economy, etc.

Anchor: Vishal Dahiya

Participants:

• Advocate Anuj Agarwal, Cyber Law Expert
• Abhishek Singh, CEO, MyGov

Context: 

• On 25th February this year, the Central Govt. had announced rules for social media platforms in the ‘significant social media intermediaries’ category and provided a three-month compliance window. 
• The latest stand­off between the government and Twitter is over tagging certain posts by BJP spokespeople as manipulated media.

Background

Section 69A of the Information Technology Act

• Section 69A empowers the authorities to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource if it is necessary or expedient to do so in the interest of the sovereignty or integrity of India, defense of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense or for investigation of any offense.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under Section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

Read more on the IT Rules, 2021 in the link.

• Due Diligence To Be Followed By Intermediaries: The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
• Grievance Redressal Mechanism: The Rules seek to empower the users by mandating the intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving and resolving complaints from the users or victims. Intermediaries shall appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officer. The Grievance Officer shall acknowledge the complaint within twenty-four hours and resolve it within fifteen days from its receipt.
• Ensuring Online Safety and Dignity of Users, especially Women Users: Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that expose the private areas of individuals, show such individuals in full or partial nudity or in sexual activity or is in the nature of impersonation including morphed images, etc. Such a complaint can be filed either by the individual or by any other person on his/her behalf.
• Two Categories of Social Media Intermediaries: To encourage innovations and enable the growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirements, the Rules make a distinction between social media intermediaries and significant social media intermediaries. This distinction is based on the number of users on the social media platform. The government is empowered to notify the threshold of the user base that will distinguish between social media intermediaries and significant social media intermediaries. The Rules require the significant social media intermediaries to follow certain additional due diligence.
• Additional Due Diligence to Be Followed by a Significant Social Media Intermediary:
  • Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules. Such a person should be a resident in India.
  • Appoint a Nodal Contact Person for 24×7 coordination with law enforcement agencies. Such a person shall be a resident in India.
  • Appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism. Such a person shall be a resident in India.
  • Publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary.
  • Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offense related to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order or of incitement to an offense relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years. The intermediary shall not be required to disclose the contents of any message or any other information to the first originator.
  • Significant social media intermediaries shall have a physical contact address in India published on its website or mobile app or both.
  • Voluntary User Verification Mechanism: Users who wish to verify their accounts voluntarily shall be provided with an appropriate mechanism to verify their accounts and provided with a demonstrable and visible mark of verification. 
  • Giving Users An Opportunity to Be Heard: In cases where significant social media intermediaries remove or disable access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users must be provided with an adequate and reasonable opportunity to dispute the action taken by the intermediary. 

• Removal of Unlawful Information: An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through an authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries, etc.
• The Rules will come into effect from the date of their publication in the gazette, except for the additional due diligence for significant social media intermediaries, which shall come into effect 3 months after the publication of these Rules.

Article 19 – Freedom of Speech and Expression: Protection of certain rights regarding freedom of speech, etc.

19(1)(a) – All citizens shall have the right to freedom of speech and expression.

• 19(2)- Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.

What the Rules aim to achieve:

• The Digital India program has now become a movement that is empowering common Indians with the power of technology. The extensive spread of mobile phones, the Internet, etc. has also enabled many social media platforms to expand their footprints in India.

As per data by PIB, there are:

• WhatsApp users: 53 Crore
• YouTube users: 44.8 Crore
• Facebook users: 41 Crore
• Instagram users: 21 Crore
• Twitter users: 1.75 Crore

• The government, by these rules, isn’t trying to hijack social media but bring an accountability factor and an element of self-governance.
• These Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights.
• It helps in controlling the sharing of objectionable content (child pornography, rape videos, body shaming, etc.)
  • Bois locker case of Gurgaon
  • Check the spread of fake news which might get spiralled into a law and order issue (Muzzafarnagar riots); (Fake news of Nirav Modi’s arrest in Hong Kong)

• It’s in line with Kamlesh Vaswani v. Union Of India And Others: To adopt various measures towards improvement in the effectiveness of blocking child pornography on the internet and to take measures to eliminate child pornography.
• Prevent the organized crime and rioting preparations (Delhi riots on CAA) on social media like telegram.
• Presently, there has been no inbuilt mechanism to check the authenticity of news on social media.

Image Source: The Hindu

• The rules ensure that social media remains an authentic source of information and promote a healthy exchange of views and constructive opinion building.

Challenges:

• Micro-blogging sites like Twitter have taken a confrontational approach due to the ambiguous cyberspace regulations.
• It may give rise to a panopticon state.
• The relaxation of end-to-end encryption may lead to exposure of vulnerabilities.
• The provisions may be used to stifle dissent against the ruling party and choke freedom of speech.

Case study: Australia’s new social media regulation law

Under the new legislation, people working for content-sharing companies can be fined or jailed for three years for hosting or streaming what the government is calling “abhorrent violent material”. That includes terrorist attacks, murders, or rapes. Social media giants can also incur fines of up to 10% of their annual turnover if they fail to remove violent content “expeditiously”. 

Way forward:

• Unambiguous parameters to designate a comment/speech as hate speech need to be evolved. There is no clear definition of what constitutes a “hate speech” in the IPC, the Committee for Reforms in Criminal Laws is attempting for the first time to define such speech. 
• Learning from the international examples of Australia and the USA.
• Holistic reforms in the cyberspace sector are required which include a data protection law, experimenting with blockchain technology to check authenticity, etc.
• Stakeholder based discussions should be done before bringing forth any regulation.

Conclusion:

Social media is a grey area of cyberspace where both personal and professional lives merge. Therefore, a great deal of caution should be employed while balancing out the constitutionally guaranteed rights of speech and expression and administrative obligations of the government.

The Big Picture: Social Media – New Rules & implications:- Download PDF Here