After sparring with various social and digital media platforms for years over content, the government has finally moved to bring all manner of digital content platforms, from social media platforms to digital news media to streaming services providers, under a single, overarching regulatory framework.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, unveiled by Information Technology Minister Ravi Shankar Prasad on Thursday, enforce stricter accountability on social media platforms, including making it mandatory for messaging services such as WhatsApp to disclose the originator of messages deemed to be “unlawful” for the purpose of “prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or of incitement to an offence 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.”
Digital intermediaries, including a category of “significant social media intermediaries”, which the government says will be based on the number of users, will have to put in place a grievance redressal mechanism and has framed strict timelines for such service providers to react to and resolve complaints about the content published on their platforms. The government has also moved to rein in the power of the largely overseas-based technology giants by forcing these big tech firms to put in place a compliance mechanism in India, including a “Chief Compliance Officer, a Nodal Contact Person, a Resident Grievance Officer, all of whom should be resident in India.”
Finally, the rules have sought to create a “level playing field” between purveyors of news on digital media and traditional print and television companies, by forcing digital media to follow the guidelines issued by the Press Council of India for print media, and the Programme Code under the Cable Television Networks Regulation Act.
The framework envisions a three-tier regulatory system. The first level is self-regulation by the entity, the second regulation by self-regulatory organisations for various types of service providers, and finally, an apex oversight body constituted by the government.
While the government has said it favours 'light touch' regulation, its actual behaviour in the past with the social media networks – the most recent being a spat with Twitter over the platforms refusal to take down accounts which it alleged were spreading 'mischief' and 'misinformation' over the ongoing farmers' protest, as well as repeated crackdowns on individuals for even seemingly innocuous social media posts as well use of serious laws such as sedition to silence dissent, raise worrying questions over whether these rules would be used to throttle freedom of speech and genuine difference of opinion, rather than tackle the very real challenges posed by fake news, inflammatory, abusive and divisive content, pornography, particularly child pornography, as well as misuse of the Internet by criminal elements – the so-called ‘dark web’.
It is also disturbing that these rules have been brought into effect without allowing any form of public discussion or incorporating the views of stakeholders. Giving sweeping powers to a purely government-controlled administrative body – including censorship of online content – without any legislative framework as a backing, which can make the acts of such a body non-judiciable, give rise to justifiable misgivings. Most importantly, by removing the 'safe harbour' provisions under Section 79 of the Information Technology Act, 2000, which give immunity to such technology service providers from consequences arising as a result of the information that is stored or transmitted through their platforms by users.
The removal of the 'safe harbour' provision can hamper digital innovation, while the traceability requirements for messaging services raises issues of individual freedom and privacy. Without proper legislation – legislation which has been discussed and passed through Parliament and therefore, presumably incorporates points of view other than those of the ruling dispensation – can lead to misuse of such sweeping powers simply to silence dissenting voices, which goes against the fundamental principles of democracy.
Likewise, the restrictions placed on both digital news and entertainment platforms, and allowing a body of government-appointed bureaucrats to sit in judgment over the suitability of the content provided by the platform may kill both genuine journalism and creativity. While there is no arguing with the need for accountability on the part of the technology giants, over-reliance on regulations and laws may lead to regulatory overreach and the throttling of free speech, as well as technological innovation.
The government needs to ensure that the sweeping powers with which it has armed itself are used judiciously, and not as a tool to obliterate all forms of expression not conforming to its own definition of the ideal. India is the world’s largest open digital market and the biggest market for social media as well. This in itself provides considerable leverage for the government over technology players. We also have a plethora of existing laws which already cover transgressions of every kind.
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