by Pratibha Chandiramani
The Ministry of Electronics and Information Technology (MeitY) in February 2021 released The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. Three months was given to the social media platforms to act per the new rules issued by the ministry. In addition, a fresh notice to all social media platforms was issued by the government. The notice sought details on the status of compliance by the social media platforms with the new rules that came into effect on May 26, 2021. These rules are not only applicable to social media intermediaries or OTT platforms but also to websites publishing news and current affairs information. Since the implementation of these rules, it has received a lot of criticism to which the government has responded that these rules are developed arbitrarily and have been implemented after careful analysis.
Many companies and intermediaries acted against the guidelines issued by the ministry as, according to them, the new rules violated the privacy of their users. WhatsApp even filed a case in the Delhi High Court against the government as these guidelines allegedly breached their customers’ privacy. As the government had set May 26 for checking upon the companies’ status of compliance, Twitter asked for an extension of this compliance period and even carried out a mutual dialogue with the government concerning the new rules as they have alleged that the new guidelines could possibly breach the citizens’ freedom of speech and expression. Twitter stated that it would adhere to the new guidelines as long as the rules did not breach freedom of expression or fundamentals of transparency. Following this announcement by Twitter, the Delhi High Court, on May 31, 2021, issued a notice to Twitter as a plea had been filed against it for non-compliance with the new IT guidelines. The new intermediary guidelines require the social media platforms that if certain information, data or link has been flagged, they must identify the originator of such data within 36 hours.
Intermediary Guidelines and Digital Media Ethics Code, 2021
The primary cause behind the execution of the new IT rules is that back in 2018, the matter of inappropriate use of social media platforms for unlawful activities cropped up in the parliament. At that time, the key problem was outspreading of fake news. Thus, to curtail these problems and to reinforce the legal structure, the Ministry of Electronics and Information Technology (MeitY) established the IT rules. These rules aim at building machinery under which the social media platforms are accountable under the law, prohibiting obscene/vulgar details on the internet and maintaining the confidentiality of the users’ information.
The Supreme Court of India in 2018 directed the ministry to formulate new IT guidelines with the view to restrain any content containing images of rape/ gang rape and to completely wipe out child pornography from any platform or application that contain such material. However, while the amendment of the new rules was proposed in December 2018, many entities criticized it as they believed that the new guidelines did not direct much attention to the problems that were actually supposed to be solved by their implementation. Moreover, the rules were also condemned for violating individuals’ freedom of speech and expression as guaranteed by the Indian Constitution under Article 19 (1) (a). In addition, the users of the multiple social media platforms criticized the rules as they opined that it might affect their privacy and their confidential information on these platforms could be accessed and used by the government for unlawful purposes. To this, the government has responded that traceability would be undertaken only if a severe offence is committed that threatens India’s sovereignty and integrity.
To tackle the outspread of fake news, the guidelines have induced a very significant provision under Rule 5(2). According to this provision, one would be able to identify the originator of the information, I.e., the individual who first posted the information in question on any social media platform. However, the scope of the originator would be limited to the territory of India. Therefore, if the first originator of the information lives outside the territory of India, the first originator identified within the territory of India would be considered the first originator of the information. However, this provision might violate the user’s security policy and privacy of communication, and it will gravely affect the virtue of end-to-end encrypted communication.
Additionally, the rules require all the social media intermediaries or the Over-the-top (OTT) platforms to appoint several ‘personnel’ compulsorily. As per Rule 4, personnel include Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer. An individual appointed as the Chief Compliance Officer must hold a key managerial position or be a company’s senior employee. The Chief Compliance officer cannot be further appointed as the Nodal Contact Person. Whoever is designated as the Nodal Contact Person must necessarily be the company’s employee. Whether all the rules concerning the grievance redressal mechanism are being followed or not by the OTT platforms is to be looked after by the Resident Grievance Officer. All the personnel appointed must mandatorily be residents of India. Several intermediary platforms have not established offices in India. Thus, this compulsion for the appointment of these officers for such intermediaries could prove to be financially burdening and cause operational issues.
The rules focus that these social media platforms must receive complaints and grievances if they fail to appoint the personnel that they are supposed to do under these rules. For this purpose, it has been made compulsory for the intermediaries to develop such a mechanism. The compliance report must contain the action that was taken for solving these complaints. In addition, the users will have the option to request intermediaries to remove certain information or content through this mechanism, thereby increasing transparency in eliminating information.
As per Rule 4 (d), social media companies must submit a compliance report every month. These reports must include a couple of things, such as the registered complaints and the action taken to resolve the same. The report must also consist of the information and material that was removed from their platforms through automated tools and the process for removing such information. This was implemented to create more transparency in content and avoid the publication of harmful, illegal material. The rules also require the social media platforms to develop and employ such tools, which will automatically delete and remove any such information that contains material concerning rape, child pornography, sexual abuse and any other such explicit or implicit content which is similar to information that been removed or disabled from access. If anyone tries to access information that the intermediaries have disabled, a notice to that user must also be displayed. However, artificial intelligence tools used to filter data by social media platforms are not very efficient. Thus, this could lead to violation of freedom of speech and increased automated censorship.
Non-compliance of new IT rules by Twitter
The issue of non-compliance by Twitter with the new guidelines issued by the Ministry of Electronics and Information Technology has been in the news since May 2021. MeiTY has sent notices to Twitter on May 26 and May 28 2021, requiring the microblogging site to comply with the new IT guidelines and submit a compliance report. Twitter did send a reply to the ministry on May 28 and then again on June 2; however, these replies did not contain any information concerning full compliance of the platform with the new rules.
The ministry sent a final notice to Twitter which contained all the details regarding twitter’s failure to abide by the law. Since the new guidelines mandated social media intermediaries to appoint a Chief Compliance officer but twitter failed to provide any information in this matter. Moreover, the guidelines clearly state that the Resident Grievance Officer and the Nodal Contact Person must be an employee of the company’s office in India; however, these officers were not employees of Twitter Inc. in India. Furthermore, the rules require the social media platforms to have a designated established office within the territory of India. Nonetheless, Twitter failed to do so as their mentioned office address is of a law firm situated in India. The Ministry sent this notice on June 5 2021, a week after the new social media intermediary guidelines had come into force in the country. The ministry warned Twitter Inc. in the notice that if it further failed to comply with the new IT rules, it will undertake stringent action against the company, and the company will have to face dire consequences because of it. As a response to the government’s notice, Twitter on June 7 informed the ministry that it is making every effort to abide by the new rules, including the appointment of personnel in India.
Twitter Incorporation was notified that if it does not abide by the new rules in the upcoming days, the Ministry will have to take a severe step against it. This might include debarring Twitter from liability mentioned under Section 79 of the Information Technology Act, 2000. Further, if the exception from liability is withdrawn, Twitter Inc. will be punished as per India’s IT act and other penal laws.
Section 79 in The Information Technology Act, 2000
This section provides a safe harbour to the social media intermediaries, and if they do not comply with the new guidelines, their security will be taken away under this section. As per the provision in this section, an intermediary will not be punished for any information, data, or communication link made available or hosted by a third party. The social media platforms are not liable to be punished as long as they are involved merely in providing access to a communication system over which the information in question is published by a third party and the platform itself had not been involved directly either in the initiation of that information or publication of that information. But the intermediaries are not exempted from liability if it has been proven that the given information was published directly by the intermediary for the commission of an unlawful act or abetment of a conspiracy; it might even lead to legal prosecution. Suppose any information, data or link has been published on a social media intermediary, and it has been brought to the notice of the authorities, and that concerning information is being used or could be used for unlawful activities. In that case, the government has the power to notify that intermediary to take down such information and disable access to the same. But if the intermediary fails to do so, its exemption from liability will be withdrawn, and it will be liable for legal action. As per Rule 7 of the new digital rules, if a social media intermediary fails to observe the guidelines, it will not be exempted from liability provided under section 79 of the IT Act, 2000 and shall be liable to punishment under laws prevalent in India at the time.
In a hearing on July 5, 2021, the government told the Delhi High Court that Twitter has failed to comply with the guidelines even after it was given more than three months since February to comply with these rules. The government had stated that as of July 1, Twitter has not appointed a chief compliance officer, resident grievance officer, nodal contact person even on an interim basis and is not showing physical contact address on its website as mandated under the rules. Following the ministry notice as a warning to Twitter, the microblogging company on July 6 in an affidavit had declared that they have appointed an interim chief compliance officer with effect from July 6. They shall share the details of the same with the ministry along with other details that the company is supposed to submit in a week. The incorporation has informed that it is taking every step to ensure that its policies and actions comply with the new IT rules. The company has also assured that it will file its first compulsory compliance report before July 11. The compliance report shall be covering the period between May 26 to June 25, 2021. It has also informed that it is in the process of appointing the personnel permanently and submitted an interim physical contact address in Bengaluru. The incorporation is currently in the process of setting up a liaison office which would eventually be its permanent physical contact address. The subsequent hearing was convened on July 8 before the Delhi High Court. The court pronounced that if twitter fails to comply with the new guidelines, it will not receive any legal protection.
In the affidavit submitted by Twitter Inc., it was stated that despite twitter taking all the efforts to comply with the new IT rules, it still has the right to challenge the government if these rules are invalid, unconstitutional or ultra vires. Thus, it seems that Twitter has finally begun to follow the new rules. At the same time, it is careful that Twitter users in India do not lose their freedom of speech and expression on the platform. Recently, the court declared that no protection would be given to Twitter if any legal action is taken against it by the government. The court reached this decision after repeated reminders were sent to the microblogging company by the ministry as well as by the court directing it to comply with the new rules despite that Twitter had failed to comply with these rules completely. The next hearing in the case will occur on July 28, whereby the status of compliance with the new guidelines by Twitter will be submitted in the court and accordingly, further actions will be taken. If Twitter continues to disobey the new guidelines, the government might exempt it from the protection given to the intermediary under Section 79 of the IT act. If such a step is taken, the company will have to suffer adverse consequences and face multiple legal actions resulting from it.
Several social media intermediaries, including News Broadcasters Association’s (NBA), Live law, Malayalam media house, filed a plea in Kerala High court Challenging the IT rules, 2021. The NBA’s petition states that these rules give excessive power to the government and are ultra vires as to its parent act (Information Technology Act 2000). These intermediaries have held the same view as Twitter that these rules curb the citizens’ freedom of speech and expression and violate Article 19 (1) (g). The writ also states that these rules vague and contains ambiguous terms. The court on July 9 delivered a judgment that the government shall not take any coercive action against the petitioners for non-compliance with the provisions contained in the Rules. Even if certain rules are not adhered to by social media intermediaries, the court directed the government to not undertake any stringent measures against it.