INTRODUCTION –
In the year 2000, the Information and Technology Act was passed. At that time social media, OTT was absent, and hence the term IT covered electronic documents, e-signature and digital authentication of those records. Although, internet got introduced in 1986, but the internet services were launched in 1995, but it was not accessible to general public per se as it was limited to education and research field. A notable move in history of ‘internet service in India’ was linking of railway services with internet. By the year 2000, we see arrival of cable service in India, which formed the backdrop of IT Act of 2000.
The social networking sites arrived by 2005. Orkut was pioneer, followed by FB, and then 2G and smartphones in 2008. This heralded newer technologies, smartphones and websites. From 2010 to 2015 there was rapid updation in Android version. Interestingly, internet service users and access increased at exponential rate, while the data cost per GB reduced – showing the underlying market strategy where people have become commodity.
With rising vulnerability and issues related to growing impact of social media, both progressive and adverse, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was enacted under Section 87 of the IT Act 2000 on February 25, 2021 by the Ministry of Information, Government of India. The rules have been framed under the Section 87 of the IT Act 2000. When enforced, these new guidelines will replace the Information Technology (Intermediary Guidelines) Rules 2011.
The objective of the new guidelines is to bring accountability of the social media platforms against its misuse and abuse. The new rules also empower the ordinary users of the social media, embodying a mechanism for redressal and timely resolution of their grievances. The term ‘intermediaries’ is defined as the ‘link between people,’ which means that the social media is the link between the people.
These new rules broadly deal with two products of internet: a) Social Media, b) OTT platforms. Here, we will be focussing with Social Media only.
NEW RULES FOR SOCIAL MEDIA UNDER IT Rules- 2021:
1. Distinction based on number of users: Under the new rules, social media is further divided into two parts – a) Social media intermediaries: Registered users less than 50 lakh. b) Significant social media intermediaries: Those having 50 lakh registered users or more than that fall under it.
2. Due caution to be followed by intermediaries: The intermediaries made accountable for the actions of their registered users on their platform. Failing to do so would result into losing the immunity given under ‘safe harbour provision.’ Latter is defined under the Section 79 of the IT Act.
3. Mandatory grievance redressal: Appointment of a grievance redressal officer, who will have to acknowledge complaint within 24 hours and resolve it within 15 days. This officer is a mediator between government and social media company.
4. Ensuring online safety and dignity of users: Within 24 hours of receiving complaint, the intermediaries have to remove any content against which a complaint is filed on the ground of exposing any private area, or show individual in partial or full nudity or in impersonification or morphed image. Complaint against objectionable content on social media platform can be filed by the aggrieved individual as well as anyone on their behalf.
5. Appoint compliance officer: The intermediary to appoint a chief compliance officer, nodal contact officer and a resident grievance officer. They should be resident of India and residing in India. A monthly compliance report to published on action taken.
6. Information of first originator to law enforcement agency: Under special circumstance, such as content threatening security of state, disturbing friendly relation with neighbouring state, rape, child pornography, disturbing public order etc. the intermediary to give information about the first originator. Also, not to alert the culprit.
7. Removal of unlawful content: The intermediary on knowledge by the order of the court or authorized agency, remove any content that unlawful that fall under reasonable restrictions.
CRITICAL ANALYSIS OF THE RULES PERTAINING SOCIAL MEDIA
Differentiated accountability: Under the new rules, within social media, two categories are created with different obligation – social media intermediary and significant social media intermediary. These categories bring a high level of government discretion in determining which platforms need to comply with what regulations. Such power is further reinforced by Rule 6, as per which the government may, by order, require any intermediary to comply with obligations imposed on a “significant social media intermediary” under Rule 4. To do so, it must satisfy the threshold of “a material risk of harm”. This threshold is vague, and it enables the Central government to enforce discriminatory compliances.
Role of Grievance Officer: The grievance redressal mechanism has a major shift from 2011 to 2021 rules. Previously, the Grievance Officer was responsible for receiving complaints from users concerning the Rules and redressing them within a month. Now, the Grievance Officer is responsible for acknowledging complaints within 24 hours and resolving them within a reduced timeline of 15 days. The Grievance Officer has also been made responsible for the receipt and acknowledgement of any order, notice or direction issued by the appropriate government, any competent authority or a court of competent jurisdiction. However, grievance officers for intermediaries other than significant social media intermediaries are not required to furnish reasons for the decision taken regarding complaints received by them. While for ‘significant intermediary category,’ the redressal system is more formalized. There is a redressal team comprising of three officers:
·a Chief Compliance Officer, responsible for ensuring compliance with the Information Technology Act, 2000 (the IT Act) and the rules made thereunder, and liable for proceedings in this regard.
·a nodal person of contact, for “24x7 coordination” with law enforcement agencies; and
·a Resident Grievance Officer, with similar responsibilities as the Grievance Officer for intermediaries described above.
Time as an essence: The obligation on the intermediaries in the 2011 Rules was to “act within thirty-six hours and where applicable, work with the user or owner of such information” to take it down. Under the new Intermediaries Rules, intermediaries must complete the takedown process under Section 79(3) of the IT Act, within 36 hours. Additionally, a new takedown requirement has been added, wherein specific scenarios, such as nudity, depiction of sexual conduct or impersonation, the intermediary is required to take down such content, upon request of the concerned user, within 24 hours
Mandatory Data Retention: the intermediaries are now required to preserve information for 180 days for investigative purposes, even after the user has deleted their accounts. In the absence of a sound data protection law in India, such provision has scope of misuse if the data falls in wrong hand.
Besides the above features, the other rules brought to monitor and identify the users are the voluntary verification of social media users and an end to the end-to-end encryption. The objective is to trace the originator of the information if any offence committed that calls for restrictions such as ‘public order.’ This limits the arbitrariness; however, the categories like ‘public order’ are quite broad and often succumb to the authority’s discretion.
Another significant feature of the new rules are the Penal provisions besides losing ‘safe harbour immunity.’ These include potential criminal prosecution under the Provisions of the Act and the Indian Penal Code.
Social Media Control – A debative take
Media is fourth pillar of democracy. It has both positive and negative role to play in shaping democracy. The social media revolution, in last two decades has tested both these aspects. It has brought wider political participation by giving access to people, even illiterate and rural community, to engage in audio-visual debate, be part of mass agitations, such as Farm Laws, Nibhaya protests. On the other hand, the same power draws negative by becoming a channel of fake news, propaganda, instigated agitations. While Print and broadcast media has many laws governing and regulating it, not many safeguards are in existence for social media platforms. Also the factors such as publishing almost anything with a minimal response time, and issues of non-traceability of the original publisher, makes it a serious violator of individual freedom and national security.
Under Constitution of India the freedom of the speech is not absolute; it is subject to some restrictions in the interests of following:
The sovereignty and integrity of India;
The security of the State;
Friendly relations with foreign States;
Public order;
Decency or morality;
In relation to contempt of court;
Defamation or/ and,
Incitement to an offence
To what extent the curbs in IT Act amount to violation of Article 19(1)(a) can be summarized through this judgment. In PUCL v Union of India, the Supreme Court held that right to get information is a right within Article 19(1)(a) of the Constitution. However, for realisation of this right it is important that people are fed by right information so that they can make their opinion.
Seeing from the perspective of aggrieved person, social media’s unchecked freedom may infringe the Right to privacy and dignity of others.
In DC Saxena v Hon’ble The Chief Justice of India, the Supreme Court observed -
“The interest of the people involved in the acts of expression should be looked at, not only from the perspective of the speaker, but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The State has a legitimate interest, therefore, to regulate the freedom of speech and expression so that one does not utter defamatory speech.”
When we trace the evolution of liability of intermediaries, there are three phases-
Phase 1: Strict Liability:
The Intermediary liability as a serious issue was first discussed by Indian Judiciary in Avnish Bajaj v State of NCT Delhi aka Bazee.com case. This case involved removal of pornographic content and the issue was raised whether intermediary can be held responsible when obscene content is posted unknowingly and unintentionally. In case of obscene content, the necessity to make intermediary strictly liable stems from following factors – if the action (of removal) is not taken urgently, the harm gets manifold by circulation. The strict liability will put some safeguard on the intermediary and resolve the issue of user anonymity by bringing self-regulation at primary level. Thus, invoking the principle of Gatekeeper liability. At this time, under the IT Act of 2000, the intermediary had liability for the offences falling under IT Act, but not under IPC. The lack of knowledge and distribution was irrelevant in the eyes of law and provided little immunity under the Act.
This case was viewed through the lens of judgment of another landmark case Ranjit Udeshi case. The case involved distribution of a banned book ‘Lady Chatterley’s Lover.’ In this, the third-party liability under Section 292 of IPC was invoked to hold the bookseller liable.
Second Phase – 2008 Amendment and Test of Due Diligence
The Amendment of the Act in 2008, brought by Bazee.com case and judicial pronouncements developed the test of due diligence to decide the extent of liability. The limited nature of safe harbour immunity was expanded to include protection from liability ‘under any law for the time being in force, including IPC.’ It also shifted the burden of proof.
In this phase, the intermediary’s liability could be waived off if the objectionable content was removed from the platform, and the intermediary was able to prove that they applied due diligence. However, the degree of ‘due diligence’ was unclear until the IT (Intermediaries Guidelines) rules, 2011 came into force. The meaning was expanded to include removing ‘grossly harmful, obscene, blasphemous, defamatory, disparaging, harmful to minors and any unlawful content’ within 36 hours of receiving actual knowledge. Thus, it worked on the principle of ‘notice and take down.’
Few cases where this test was applied:
In Super Cassette Industries v MySpace Inc., the Delhi Court held MySpace guilty of copyright violation despite them claiming ignorance, because they failed to prove that they did not have knowledge, and they applied due diligence.
Similarly, in Google India Pvt Ltd vs M/S Visaka Industries Ltd., Google was make accountable for the defamatory content posted by a user, as they did not remove the defamatory materials in spite of being notified of its existence. Same protection of Section 79 of the IT Act, 2000 was waived off as the intermediatory failed to remove the objectionable content in Nirmaljit Singh Narula vs Indijobs at Hubpages.com.
Third Phase – IT Rules 2021 – Re-application of Strict liability?
The new rules are one of the toughest stand on regulation social media. They have been challenged in various Courts, for example Whatsapp and Twitter filing suit challenging the constitutionality of the Rules.
The rules are criticized for violation of fundamental rights, such as right to privacy by tracing the origin of first publisher. They are also criticized for undermining the principle of open and accessible internet, and objected for introduction without following due process of law. Another fear is the vulnerability it may cause because of absence of data protection. The 2021 Act puts additional restrictions to reasonable restrictions that are already there in Article 19(2). These include: a) harmful to child, b) insulting on the bases of gender, c) intentionally imparts information that gives false patent information.
Social Media is a powerful integer in strengthening a Country both at domestic and global stage. While Freedom of Speech is the basic essence that governs Social Media, but unbridled power had its drawbacks. In words of Lord Acton – Power corrupts and absolute power corrupts absolutely.’ The IT Rules of 2021 address many challenges that are faced when social media is misused. However, it is required to first build a complementary regime, such as better data protection laws, objectivity in defining ‘public order,’ ‘reasonable restrictions,’ ‘unlawful activities,’ so that these Rules do not become a tool of controlling Social Media for political and capitalist gains.
Written By,
Vartika Sharma
Intern, Chanchlani Law World
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