The last week of May 2021 saw mostly all social media platforms overwhelmed with memes, texts, videos, etc that humourized the possibility of their ban in India. This is because the Government of India in February this year notified its Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 or the Intermediary Guidelines, for short and the deadline to comply with these rules expired on 25th May.
For long now, serious tensions have been brewing between the Government and social media companies particularly American tech companies as India’s ruling party continues to intensify its crackdown on social media & messaging apps to curb fake news and malicious content. In a bid to create a “soft-touch oversight mechanism” and promote accountability without compromising with creativity and freedom of speech and expression, the Government came out with new IT rules to empower the ordinary users of digital platforms in the country. Ever since New Delhi issued these rules, much has been written about how this would change the way social media intermediaries do business in India.
Reports suggest that social media intermediaries operating in India, including big ones like Facebook, Google and Indian origin platforms such as ShareChat and Koo have started complying with the rules either partially or fully. However, both Twitter and WhatsApp have voiced their objections in public and shown reluctance in following the guidelines.
What Do The New IT Rules Say?
The rules firstly make a distinction between social media intermediaries and significant social media intermediaries. The latter comprises companies with more than 5 million registered user base in India like Facebook, Twitter, WhatsApp, etc. The rules then go on to empower the Government to ask these social media giants & messaging apps to identify the first originator of offensive posts, tweets, and texts shared on their respective platforms in India. The rules also mandate intermediaries to put in place automated mechanisms for removing pornography, set up redressal mechanisms to respond to complaints, and appoint Indian citizens in regulatory / compliance roles.
A Possible Threat To Twitter’s Identity?
In the recent past, Twitter has been at loggerheads with the Government by choosing to selectively comply with the orders to takedown viral posts/content showing dirty politics in events like COVID-19 or farmers’ protests. This led to raids by Delhi police in Twitter offices and Twitter expressing concerns about the safety of its employees in India due to such incidents. Later, the microblogging site batted for continuing constructive dialogue with the Indian government over the new guidelines and advocate for changes while remaining concerned about its employees in India and the potential threat to freedom of expression for the people it serves.
Why Did WhatsApp Approach The Legal Doors?
Facebook Inc.’s WhatsApp has claimed that with the new IT rules it would have to break end-to-end encryption (E2EE) and also compromise their users’ right to privacy which is a fundamental right in India. Accordingly, the popular messaging service has sued the Government in Delhi High Court (HC) stating that mandatory traceability of messages is unconstitutional and against the fundamentals of E2EE technology used by messaging apps
Governance But Under A Fair regime?
Globally, there has been a rising trend of Governments resorting to landmark sovereign laws for digital media as well as for promoting localization. Australia passed a legislation that requires tech companies like Facebook and Google to pay media companies for local news content. Similarly, Brazil passed its contentious Fake News bill which requires private messaging services to trace and store logs of broadcasted messages for three months. India’s intent to put in place a new framework to avoid misuse and abuse of the power commanded by significant social media players is no different. It cannot be disputed as well since the Constitution that allows our freedom of speech, also makes space for reasonable restrictions such as the requirements pertaining to the first originator of any information.
Non-compliance with India’s new IT rules could see tech companies forgo the legal shield that protects them from being sued for the content shared by their users. This extension of liability puts the appointed compliance chiefs at personal risk of criminal proceedings and might end up resulting in regulatory slaughter. Also, all entities will have to give in to the obligation of being a significant social media intermediary simply because their registered user base in India crosses the threshold of 5 million even if they have more inactive users than active.
As the Government has strongly reiterated its original stance in the official responses to objections made by both Twitter and WhatsApp, one thing is for sure that India’s digital sovereignty will not be compromised at any cost. While hearing a plea, the Delhi HC recently has said that Twitter will have to concur with the Central government’s new rules for social media intermediaries since these have not been stayed by any court of law. Twitter now has three weeks to show compliance. At this point, what we need are lighter tools of interventions when too many important things are at stake. India’s new directives merit a wider and healthy discussion rather than just ugly fights and news-making lawsuits.
Views expressed are personal.
