The Centre on Thursday notified new, stricter guidelines for social media intermediaries that will make it mandatory for platforms such as WhatsApp to aid in identifying the “originator” of “unlawful” messages.
It will also require the likes of Twitter, Facebook and YouTube to take down such messages within a specific time-frame, set up grievance redressal mechanisms as well as assist government agencies in investigation.
At a press conference, Electronics and IT Minister Ravi Shankar Prasad said the basic essence of ‘The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’ is “soft-touch oversight” mechanism to deal with issues such as persistent spread of fake news, abuse of these platforms to share morphed images of women and contents related to revenge porn or to settle corporate rivalries.
Think-tanks and experts welcomed the new “well-intended” rules, stating that these bring clarity on responsibilities of intermediaries.
However, they added that in the current form, these guidelines could undermine the principles of open and accessible Internet and violate the right to privacy and free speech of users, particularly in the absence of robust data protection law. They noted that these could also lead to an erosion of the ‘safe harbour’ protection given to intermediaries under Section 79 of the IT Act.
“Social media is welcome to do business in India...they have got good business and have also empowered ordinary Indians... But it is very important that crores of social media users be given a proper forum for resolution of their grievances in a time bound manner against the abuse and misuse of social media,” Mr. Prasad said.
The new rules, a draft of which were released in 2018, comes close on the heels of a tussle between the government and Twitter over removal of certain content related to the ongoing farmers’ protests.
The government has also been at loggerheads with WhatsApp for over two years on the issue of tracing the originator of messages on the platform. The Facebook-owned firm has in the past refused to comply with the government’s request to trace the origin of a fake message, stating that the move will undermine the private nature of the platform.
As per the Minister, in India, WhatsApp had 53 crore users, YouTube 44.8 crore users, Facebook 41 crore users, Instagram 21 crore users and Twitter 1.75 crore users.
On receiving a court order or being notified by the appropriate government agency, an intermediary will need to remove or disable access to information any unlawful information “as early as possible, but in no case later than 36 hours”.
The intermediary will also have to provide information or assistance to authorised government agency for “investigative or protective or cyber security activities, for the purposes of verification of identity, or for the prevention, detection, investigation, or prosecution, of offences under any law for the time being in force, or for cyber security incidents” within 72 hours of the receipt of an order.
Reacting to the guidelines, a Facebook spokesperson said, “The details of rules like these matter and we will carefully study the new rules that were just published... Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms.”
The spokesperson added that the company welcomed the regulations that set the guidelines for addressing today’s toughest challenges on the Internet and was committed to people’s ability to freely and safely express themselves on its platforms.
The rules, which categorise intermediaries as social media intermediary and significant social media intermediary based on number of users, said significant social media intermediaries providing messaging services would “enable the identification of the first originator of the information”.
However, it added that such an order would “only be passed for the purposes 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.”
Additionally, no such order would be passed in cases where other less intrusive means were effective in identifying the originator of the information and the intermediary would not be required to disclose the contents of any electronic message.
Mr. Prasad said, “They need to tell us, who started the mischief.”
Additionally, the intermediaries need to appoint a Grievance Officer to deal with complaints and share the name and contact details of such an officer. “Grievance Officer shall acknowledge the complaint within 24 hours and resolve it within 15 days from its receipt... Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act 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,” the government said.
It pointed out that the Rules prescribed due diligence that must be followed by intermediaries. “In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them,” it said.
Further, significant social media intermediary would need to appoint Chief Compliance Officer, a Nodal Contact Person, a Resident Grievance Officer, all of whom should be resident in India. They would also need to 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.
Safe harbour provisions
Kazim Rizvi, Founder of technology think tank The Dialogue, said given the challenges like fake news, child sexual abuse material and drug trade on the digital platforms, regulations were important. However, the government must be mindful that it did not over-regulate leaving a deleterious impact on the users’ right to privacy and free speech.
“The cornerstone of our digital freedoms is ‘safe harbour’. Thus, making it conditional to the requirement of automated proactive monitoring and censoring illegal content as mandated under the new rules might lead to privacy challenges, and could also lead to censorship by intermediaries,” he said. He pointed out that the use of automated tools that were not nuanced enough was likely to cause a “chilling effect” on ‘free speech’.
Mr. Rizvi said the traceability requirement to tackle fake news and child sexual abuse material would entail breaking end-to-end encryption, which might impact the privacy, safety and security of the citizens and the national security of the State. “Tracing the originator of content would not be possible without breaking end-to-end encryption, and we believe that this mandate must be reconsidered,” he noted.
Likewise, not-for-profit legal services organisation Software Freedom Law Centre, India (SFLC.in), said the Rules could undermine the principles of open and accessible Internet, the fundamental right of privacy and freedom of speech and expression enshrined in the Constitution. This could also lead to an erosion of the safe harbour protection given to intermediaries under Section 79 of the IT Act, it stated.
Prasanth Sugathan, Legal Director, SFLC.in, said: “The provision mandating identification of the originator of information affects encrypted messaging platforms like WhatsApp and Signal. The traceability requirement coupled with the mandatory requirement for appointing a Chief Compliance Officer, a Nodal Contact person and a Resident Grievance Officer might make it difficult for platforms like Signal and Telegram to provide services in India. This will definitely not be in the interest of the user who will then have a limited choice of applications.”
It also highlighted the lack of proper consultation on the new Rules “which have major changes and additions from the draft” published in December 2018. “The consultation process forms the basis of all legislation and policies in the country. Such important frameworks must be only finalised after detailed consultations with relevant stakeholders and the public at large. The Pre-Legislative Consultation Policy stipulates a 30 day consultation period for all legislations and government policies released by any ministries/departments,” it said.
Mayank Bidawataka, Co-founder, KOO — the Made in India alternative to Twitter, said the guidelines helped clarify the responsibilities of intermediaries. “Only a small fraction of the social media users are found to be making posts which may be against the laws of the land. The social media guidelines make addressing these situations uniform across all social media platforms and ensures the safety of the majority social media users across India.”
He added, “Enabling and maintaining freedom of speech is core to social media platforms...This policy will help protect the interest of citizens at large and keep nefarious elements at bay”.