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India, which is considered to be the liberal and democratic counterweight to its authoritative neighbor Chia in South Asia turned up at the top in a list of 21 countries from around the world when it comes to banning internet as a medium to exchange ideas and information. According to Top10VPN, a research firm in the field of internet security and privacy based in UK, these shutdowns took out a whopping 2.8 million dollars in terms of losses to businesses and individuals from India’s pocket. This may come as a classic ‘irony’ in the minds of the countries’ citizens and the rest of the world alike, for a democratic republic with the largest constitution to protect the liberties of its subjects facing such dilemmas but it is not a sudden occurrence. There may be observed a series of events which nudged the government towards such erosion of freedom of speech and liberty especially in the context of recent events demanding a stance from the cyberspace such as the Farm Bills Protests. For now, it is relevant and observable that the Indian Government further has tightened the noose around social media platforms in the form of new IT rules notified in February 2021.
The Twitter Row
It is true to a certain extent in the present context now that the Far Bills protest took most of the spotlight when it came to the political arena in the first few months of 2021 and the release of the present guidelines too, had this as a factor. It all started after the incidents of chaos and reports of violence came in on the Republic Day, reportedly caused by the protestors in order to draw the eyeballs of the world which were already on India due to the special occasion. The government in all this identified a few accounts and hashtags that may have played a critical role in the formulation of such events and saw the threat to its authority in future if these trends on social media kept on. This is especially deducible knowing India is one of the largest consumers of internet based services and content such as news and media emanating from such platforms. Indian user ship approximately make up 53 Crore Users of Whatsapp (near to 40 percent of Indian Population), 41 Crore Facebook users and a relatively small yet significant 1.75 Crore users of twitter.
It all started when around 250 twitter accounts belonging to all spheres of individuals and organisations supporting Farm Bill protest and were vocal about it were suddenly blocked and unreachable in India on Twitter. The reason for this was initially unknown, divided by two separate theories. First, if the accounts somehow violated the terms and conditions that each account had to follow as a policy of twitter and thus, were banned or second, if the authorities directed twitter to do so. By large, twitter has always been a battleground of conflicting views and opinions and it is often used to influence the general public towards an intended ideology or increasing favourable opinion about actions regarding public policy, or, as demonstrated here, to gather support for some common cause. Government clarified this later that it had directed twitter to block these accounts’ access to the general platform by issuing it a ‘legal notice’ using its powers under section 69A of the Information Technology Act 2000. Some of these accounts, which essentially formed the digital front of the protests of the farm bills were organisations such as the Kisan Mukti Morcha, actor Sushant Singh and the official twitter handle of the magazine “Caravan”. The reason given for such a course of action by the government was a wrongful implication given by the hashtag which mentioned that the government had an intention towards genocide of farmers (#ModiPlanningFarmerGenocide) as well as a propaganda of misinformation and the consequent effect on public order. But it is interesting to note that this seemed a blanket statement as the Caravan was deliberate enough to never use the hashtag in any of its posts on twitter about farmers’ protests.
At first, twitter was swift in acquiescing to the demands followed by a swift action banning the mentioned accounts and removal of the hashtag. But after some time, twitter reinstated the accounts again inviting a bitter reaction from the government including a non-compliance notice along with threats to local employees of twitter disguised under the legal consequences to be faced by the under the section 69A. Twitter further bolstered its stand on reinstating the accounts through a blog post, in which it maintained that withholding these accounts on the directions given by government would itself entail a violation of the Constitutional right of Freedom of Speech given to politicians, activists and journalists, to whom these accounts belonged to.
The government naturally, was very unsatisfied by these turn of events as the BJP ruled centre deemed this an act of defiance by the Tech Giant. It is already facing severe criticism on the domestic as well as the international front with respect to the Farm Bills, including harsh remarks from famous and influential personalities such as Rihanna, Greta Thunberg and others. Controlling one end of the protest spectrum, the digital end, would have allayed the tensions from the government, but when such disregard of its orders were done and reasoned the government tried to control the situation by notifying new rules bringing in the legislative powers vested in it.
Given the widespread implication of such a powerful provision present within the legal arsenal of government, it is important to understand the workings of this law and how it has been developed over the recent years including the course given by important judicial decisions, followed by the new set of rules and guidelines updated by the government recently in this regard.
Existent Legal Scenario
The primary law in India which is responsible for governing all activities related to technology and digital resources is the Information Technology Act which was first enacted in 2000. Since then there have been many amendments in the act to keep up with the ever evolving dimension of digital space. Like all other important acts in other fields, this contains definitions to important terms, such as the term we are looking for here: intermediaries. Twitter is an apt example of what an intermediary is. In specific terms, it is “any person who on behalf of any other person receives, stores or transmits any electronic data”. Some other examples of intermediaries thus according to this definition can be online payment sites, market places, web hosting platforms, social media networks, telecom service providers etc.
According to section 69 of the act, government has special powers to issue legal notices “to intercept, monitor or decrypt… any information generated, transmitted or stored in any computer resource”. The applicable grounds through which this section can be invoked are “, in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence”.
Thus, through the powers provided by this section in the Information Technology Act, the government could easily direct any person or intermediary to stop any or all operations which poses a threat to the grounds provided within section 69. So, inadvertently, if the government, in spite of all the promises that are provided by the social media platforms and other intermediaries in the name of privacy, asks them to reveal through decryption, monitoring or interception any such information, the company would be forced to do it. It becomes a legal liability that the intermediary does so. And all the employees would be deemed vicariously liable, just like in torts, if the employees fail to provide such information or cease any operation that the authorities command. Failure to acquiesce to such commands may entail a prison sentence of up to seven years, in addition to any appropriate fine.
But it would seem illogical that a company/intermediary be deemed liable absolutely for any of such demands that the government puts forward. It is not in the spirit of effective and constitutional law making that a law be made absolute and not provide pragmatic exceptions in case there is a deviation from normal circumstances. Any good law is bound to have exceptions inscribed within it that would make the power granted through these laws limited and shackled by logic and reason. The question is, whether the existent law has absolved some liability from the shoulders of intermediaries. The answer lies in section 79 of the same act which provides for the cases in which these intermediaries would not bear liability. It states that an intermediary may not be made liable if the information that is deemed harmful was provided by a third party, in simple words, its users. Although it would be liable if there is a clear indication that the intermediary has a clear hand in abetting or inducing such act. It also makes intermediaries responsible once they receive “actual knowledge” that such a material is present on the platform which is violative of the law, and would make it punishable if not removed, when intimidated.
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Shreya Singhal Case
The term “actual knowledge”, that is when would the information considered relayed to the intermediary about the violation that would actually ensue legal consequences was determined by the Supreme Court in 2015, when it was hearing a case on the constitutional validity of section 66A of the same act, which is essentially talked about defamation through digital means as an offence, but the case also ended up deciding the fate of section 69A and section 79 in the case. This case was Shreya Singhal v. Union of India 2015. The case upholded the validity of section 69A, it also provided clear explanation of the vague terms provided, such as actual knowledge and stated that it would mean any information that is given through a court order. This was done seeing the wide reach and user base of these intermediaries such as Google, Youtube, Facebook and Twitter who received as a consequence of such large user ship; millions of requests to block every other thing daily and it would have meant slow processing, inefficiencies and errors.
But court orders are essentially negative in their nature, as they only work to restrict some actions and laws rarely touching on the creative aspect of it all. These powers to actually positively influence legal and political action by making of laws which actually make further decisions lies with the legislature. Thus the government conveniently saw a motive in all the conditions farmers’ protest had created and actually came up with new guidelines concerning essentially the role of intermediaries. There was a lacuna in law and a officious opportunity to fill it with a new law.
New IT Rules 2021 and Problems
Thus came in the new IT Rules 2021 or as officially notified, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which attempt to expand on the “due diligence” part of the IT Act, which is basically the carefulness and vigilance that the intermediary itself has to perform in order to self-govern. But rather than providing a clear legal framework to govern the digital world, the new guidelines rather have opened a new pandora’s box, tempering with sensitive issues of privacy of end users, political neutrality and moral policing.
It also lays down a framework for organisational changes that the intermediaries should take up in order to better provide these services to the government in less time and with better accuracy. Most of the changes may only apply on companies which have a significant number of users. These include appointment of a compliance officer of Indian origin within the company for significant intermediaries and appointment of a nodal officer for 24×7 coordination with law enforcement agencies for faster and easier compliance with law.
Also, social media platforms are not the only intermediary it seeks to target. There were other platforms that the government thought needed regulating such as the OTT Platforms such as Netflix, Amazon Prime etc., which provide digital content online for consumption. Until now, there had been no major law regulating the type of content these websites decided to show and to whom. This was a reason for many of the content creators to really exhibit the potential Indian entertainment industry could form into. These initiative also brought many accolades because of the free reign these creators were provided and its effect on their artistic presentation and articulation. But as seen in the recent row over various Web Series regarding a plethora of issues, one of them being Tandav, which was recently in crossfires with allegations of hurting Hindu sentiments and could be one of the immediate reasons government considered making new guidelines. Sacred Games which was released back in 2018 was facing FIRs and cases due to similar reasons. Another web series “A Suitable Boy”, based out of a novel of same name by Vikram Seth faced cases because of a scene consisting of kissing, between a Hindu and Muslim partners, alleging it to promote “love jihad”. The new guidelines directs platforms to divide content based on 5 age groups to deal with issues of immorality and nudity that these content are deemed to violate.
For any resolution of disputes, the government has formulated a three-tier grievance redressal system comprising of Publisher, self-regulating body within the intermediary and lastly to the Information and Broadcasting Ministry’s oversight mechanism, forming a inter-ministerial grievance redressal committee.
These rules also take into consideration online news platforms and propose that they comply with the ethical standards set by “Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act” for digital news both print and audio visual respectively. But nonetheless, IT Act does include digital new in the category of intermediaries and thus, it does not get the privilege of immunity under section 79 of the act and thus, they are prone to whimsical censorship based on the pleasure of government. Many digital news media outlets have voiced their contentions over this issue, stating it a violation of Article 19, Right to Speech and Expression, questioning the decision making power bureaucrats and ministers have over vague standards. The new law has been quite on this issue.
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While it is appreciated as being a much awaited piece of law for new categories of popular cyber spaces, keeping in mind a progressive view of the situation allowing redressal system to initiate from the news media body itself, it still poses question regarding the privacy violation clauses and excessive powers granted to government in terms of what type of content should or should not circulate around the digital platforms. Government still has the first initiator advantage. Rather than providing clear legislative backing with deliberation over provisions enacted in a democratic way in the parliament, it seeks to provide the government with more power, handing reins to the bureaucrats, without the involvement of other stakeholders in this digital law such as news media agencies and social media intermediaries. It is quite logical to put a leash on the new beast of the century that is social media, which holds power to sway entire democratic social system in favour of whoever controls it, but decisions lacking legislative authority and deliberation, such as the blocked account of Caravan may still hinder the government benign efforts to put the digital destiny of the country on right track.
 Samuel Woodhams and Simon Migliano, “The Global Cost of Internet Shutdowns in 2020” Top10vpn.com (Top10VPN, 2021) available at: https://www.top10vpn.com/cost-of-internet-shutdowns/ (last visited March 18, 2021).
 The Information Technology Act of 2000 (Act 21 of 2000), Section 2(w)
 Ibid, Section 69(3)
 Ibid Section 69(1)
 Ibid Section 9A (3)
 Ibid Section 79(1)
 Ibid Section 79(3)(a)
 Ibid Section 79(3)(b)
 AIR 2015 SC 1523 Shreya Singhal vs. Union of India (UOI) (24.03.2015 – SC)
 Supra Note 2, Section 79(2)(c)
 Reuters, “Signal, Telegram see demand spike as new WhatsApp terms stir debate” The Hindu (The Hindu, 2021)available at: https://www.thehindu.com/sci-tech/technology/signal-telegram-see-demand-spike-as-new-whatsapp-terms-stir-debate/article33534932.ece (last visited March 20, 2021).
 Sowmya Ramasubramanian, “Consumers prefer messaging apps with privacy features to ensure safety, report says” The Hindu (The Hindu, 2020)available at: https://www.thehindu.com/sci-tech/technology/messaging-apps-with-privacy-features/article33384305.ece (last visited March 20, 2021).
 PTI, “Tandav controversy: Information & Broadcast Ministry seeks explanation from Amazon Prime Video” The Indian Express (The Indian Express, 2021)available at: https://indianexpress.com/article/india/tandav-controversy-information-broadcast-ministry-seeks-explanation-from-amazon-prime-video-7150509/ (last visited March 20, 2021).
Author: LAKSHYA PRAJAPATI
Editor: Kanishka Vaish, Senior Editor, LexLife India.