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The role of social media in India cannot be compromised. Over time, the use of social media has changed dramatically. For business purposes, Facebook is the most vital social media platform because it involves clients, followed by YouTube, Twitter, LinkedIn and blogs. Social media is used by brands to create communities of interaction and spreading of information not only persons but all organizations, they have an online presence on social media platforms such as Facebook, YouTube channels, twitter etc.
India is the top open internet community in the world and the Indian government wants social media companies to operate in India. However, they should be responsible to follow the law and order of the country. On 25 February 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting declared the 2021 Information Technology Rules (Interim Guidelines and Digital Media Ethics Code) (Interim Rules 2021) under section 87 of the Information Technology Act 2000. The aim of the 2021 Interim Rules, which will replace the 2011 Information Technology Rules, is to establish a flexible oversight mechanism for social media platforms such as digital media and OTT platforms as well.
Sections 69A(ii), 79(ii)(c) and 87 of the Information Technology Act, 2000 are the three relevant provisions where the new rules were passed. These new rules substitute the former enacted rule.
Failure to comply the rules could also lead to an erosion of the “safe harbor” protection afforded to intermediaries under section 79 of the Information Technology Act 2000.These new rules seemed to have reduced liability by reducing the need to be the best at achieving the goal. And second, reducing the scope of illegal content which includes content that is full of sexual abuse, child sexual abuse, and duplication to remove content. and information technology rules help to eliminate the problems that many people have like scams, libel, etc.
What are the new regulations for the social media company and OTT platform?
New rules ask the social media platforms to take down the illegal or false content upon receiving an order form the court or notice from a government authority within 36 hours of issue. The social media companies shall appoint grievance officer and should resolve the flagged issue within 15 days. Social media companies must remove sexual act or unlawful content which is uploaded in social media. The social media company should identify the so called first originator of content where the authorities consider as anti-nationals. These rules are stricter for bigger social media platforms (for more than 5 million users). That means social media companies should set up grievance redressal mechanism for users or to people who are victims.
The ministry of information and broadcast has in the previous year concerned on some form of regulation of Over-the-top (OTT) Platforms to reorganize the sector and held consultations with several shareholders. Regulation of OTT platforms is a topic of debate not only in India and it is also to be noted that various countries are taking different kinds of ways regarding how to regulate the OTT platform. In this context, the ministry of information and broadcast notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021.
These guidelines were notified in February giving three months to comply the rules. The notified deadline for social media companies to comply with the IT Rules, 2021 ended on 25th May 2021. The next day Government of India, issued a letter to all the significant social media intermediaries, inquiring inter alia, and the status of implementing new IT rules.
OTT platforms are to set up a well-built three-tier grievance redressal mechanism. The primary level will contain regulation by the OTT Platform itself over a grievance officer. The secondary level will be an institutional self-regulatory body shaped by publishers of content and their associations. This self-regulatory body will comprise industry experts regulated by a retired Apex Court or High Court judge or renowned personality in the related field. At the final level is an inter-department committee constituted by the ministry of information and broadcast that will provide oversight and hear appeals for decisions taken at secondary level or if a complaint is referred to the inter-department committee by ministry of information and broadcast.
Content rating categories are classified into “U”- unrestricted public exhibition that means suitable for all ages, U/A 7+ that means restricted public exhibition with parental guidance for children under age seven and above, U/A 13+ that means restricted public exhibition with parental guidance for children under age thirteen and above. U/A 16+ that means restricted public exhibition with parental guidance for children under age of sixteen and above and ‘A’ that means restricted to adults. OTT Platforms must arrange access control mechanisms for content classified as U/A 13+ or higher.
These content divisions are, in fact, not new and existed as part of the Cinematograph Act 1952.Still, division of content will be a challenge given such classification would, in practice, be based on the sensibilities of people of each OTT platform.
Reasons for imposing new rules
Government says that they have been receiving a lot of complaints- the women are being harassed, people are defamed, photos are morphed and are shared. The government noted that these platforms are not taking strict actions.
In 2018, the supreme court on (prajawala case) its Suo moto writ petition had asked the government may frame required guidelines to put an end to child pornography, rape and gangrape images or videos and sites in content hosting platforms as well as other apps.
In 2019, the supreme court had directed the Ministry of Electronics and Information Technology to assess the timeline in respect of completing the process of notifying the new rules.
Also, there was a call for vigilant attention on the misuse of social media and the spread of false news. Rajya Sabha and the minister on 07, June 2018 reported, the government’s decision to strengthen the legal framework and to create social media platforms responsible before the law. Minister also referred to repeated requests by MPs to take corrective action.
The ad hoc Rajya Sabha Committee presented its report on 02nd march 2020 after understanding the shocking issue of pornography on social networks and its effects on children as well as the society, the Rajya Sabha Committee recommended to allow the identification of the originator of such content. So, the government has notified the code and want to self-regulate ensuring the users are not harmed.
The question arises whether the new IT rules change the way you use social media sites?
There is no need to panic as there is no change in the way you regularly interact in these platforms. If you do not break national rules like community guidelines, with offensive or outright dangerous messages etc. It is entirely in the framework of a strong provisions. The only difference, in a way, would be if any user raises an issue with the complaint systems of any of these platforms for content posted by any other user – resolution will now need to be faster and the platform will need to be responsive.
Impact on live streaming on social media
Implementation of new IT rules will reduce the problems because of live streaming on explicit content. Users go live on Instagram, YouTube, Facebook etc. some users live stream content on illegal or false contents which affects people’s lives. This affects very badly on people. Some users broadcast live sexual content, which primarily affects children and young people. While some users broadcast live about insulting or harassing others. Most live broadcasts aren’t bad, but there are users who use it for explicit content. Sharing false news without any proper proof about others can also affect people’s lives. Thus, the government has put in place new IT rules so that it can be monitored by the authorities to avoid problems.
Positive effects of these rules
With the implementation of these rules, it helps children from preventing them from seeing the sensitive content and keep them from bad influences. users can be held liable for the explicit content will be noticed by the authorities. Under such situations, they can be held liable for sharing illegal content. Also, If the social media company don’t comply with the rules the intermediary will lose its safe harbor from user content liable to punishment under any law which Could include suit under Information Technology Act or India penal code.
Negative effects of these rules
Some experts believe that there are some negative effects of these new IT rules. They see that when the new IT rules are implemented it affects right to privacy which is article 21 of our Indian constitution because these rules may keep a check on our messages (WhatsApp, messenger). Social media such as WhatsApp, signal, telegram will have to get end-to-end Encryption to follow the verifiability The main negative effect is that it will infringe on the privacy of users, every person has their privacy that these rules will be in conflict. Experts say that it is not enough to act with stakeholders and that there are many opportunities to activate cyber-attacks because of these rules. Probably the government wants the strictest control of social media and OTT platforms. Digital companies can significantly impact. India is the largest internet market, with more users, so it can be very difficult to implement these new IT (information technology) rules.
The decision of various social media companies
Facebook INC. the world’s largest social media network, and their other companies Instagram and WhatsApp aim to comply with the India’s new IT rules. The founder of Facebook also informed that the they will discuss some of the issues with the government if they can give some relaxations in the rules.
The Delhi high court asked twitter to comply with the new rules and gave three weeks to reply to plea which contented that the company has not followed the new rules. The counsel informed that twitter has appointed a Grievance Redressal Officer, as required by the rules.
Twitter has stated their views to the ministry of electronics and information technology that it is dedicated to obeying with all clauses of the intermediary guidelines and asked for a seven days’ time, for the officials familiar with the matter, days after the authorities issued an ultimatum to Twitter.
Reports say that twitter has lost its intermediary status recently as it did not follow the new IT rules. Government also informed that twitter is the only platform that has not followed the new rules. Also, informed that twitter has got many chances to follow but they did not make it. These results twitter liable for unlawful content.
Google LLC responded that India’s new IT rules for online news publishers are not applicable to its search engine, and wants the hon’ble Delhi High Court to declare the process to be invalid which applied them on the company while dealing with an issue related to removal of anti-social content from the cyberspace.
Google further stated that if an intermediary fails to fulfil the conditionalities and obligations cast upon it, it was liable to forfeit the exemption from liability available to it under the Information Technology (IT) Act,2000.
Issues- New IT rules,2021
These rules have improved censorship of unlawful content. In addition, the social media to follow with government requirements for collecting data of the user and the enforcement of regulations of online services in our country. Rules are developed in the absence of proper public discussion and without any legislative analysis. The new rules issued under the Information Technology Act 2000 seem unlawful. As an alternative of taking a legislative route, this was done by broadening the scope of the Informational Technology Act of 2000.
An executive cannot use its regulatory power to enact even primary legislation. But, the government by introducing new IT rules of 2021 has increased the scope of subordinate legislation. The new rules will also regulate digital news media, this is a credible source of information. Any involvement of the government can have a disturbing effect on their freedom of speech and expression.
under the new rules, anyone with a complaint regarding content related to the code of ethics can file their complaint. strictly, a digital platform will be forced to take up an issue made by any user. This opens the door to all kinds of actions, given the fact that many digital information publishers are minor units. The new rules have increased the obedience burden for social media companies. For instance, Major platforms (which has more than 5 million) like WhatsApp will need to appoint compliance officers. He/she should ensure that the rules and laws are respected. A nodal officer should be chosen, to ensure coordination with the enforcement authorities.
The new rules require the storage of user data by intermediaries for the use of authorities. The rules require messaging apps for example messenger to track the origin of problematic messages based on a court order. This creates uncertainties about whether these orders will be followed because their messages are end-to-end encrypted.
The new rules deliver for the registration of digital news sites at the Ministry of Information and Broadcasting. In addition, OTT platforms are required to maintain a “self-regulatory system” of government. Under the Information technology Act, however, the digital media publishers are not required to register. Likewise, streaming video content is not included in the scope of the cinematograph Act.
The IT Act,2000 doesn’t cover content authors and creators like news media, but this time rules have covered them. This provides discretionary powers to the Indian government. The proposed oversight mechanism doesn’t have any legislative support which is commonly given to other regulators. For example, the Telecom Regulatory Authority of India Act provided control to Telecom Regulatory Authority of India also known as TRAI. Under the rules, the regulation will be done by a body composed of officials in a government department. They might perform discretionary restriction.
Comparison of new IT rules around the world
With the recent legal actions to regulate social media, one can say that our nation is entering a phase of increased control over social media as well as digital streaming platforms. It is to be noted that India is not only seeking a larger government regulation of social media platforms, nor is it the first to require these platforms to use AI to censor content before the government interferes with the matter.
Australia also has legislation in place to establish a 48-hour period by that time social media companies must remove pornographic messages of harassment, abuse or revenge, if ordered by the Office of the Electronic Security Commissioner. Failure to do so will result in a fine of up to fifty-five thousand dollars for websites and social media companies and up to eleven thousand dollars for users.
Since 1995, the South Korean Office of Information and Communication ethics has provided the right to order information providers to remove and restrict content that undermines public faith, resulting in loss of supremacy. citizenship or information that could harm adolescence, character, reactions and sense of worth.
However, the USA has planned out another plan with Section 230 of the Communications Decency Act, 1996, which protects online services, including intermediaries, from liability for the transmission of content by third parties. Section 230 made America’s social media companies largely self-regulated. This does not mean that the federal United States government did not try to increase its ability to order content to take down: legislation such as the Child Online Protection Act,2000 has tried to make it illegal for websites to host material. Considered dangerous to minors for commercial purposes., but were later considered legal. Generally, laws imposing liability on the platforms themselves are included in the legal contests surrounding the First Amendment and Section 230. However, it remains illegal for users of these platforms to download unlawful content.
However, the European Union holds social medias responsible for copyright infringement by their users.
When it comes to over-the-top platforms, some countries like the United Kingdom (and Australia in the case of Netflix) prefer OTT platforms as self-regulating, others directly determine what regulations they adhere to in terms of content. With the three-level mechanism with two levels of self-regulation and the third level being a monitoring mechanism under the Ministry of Information and Broadcasting, India’s approach is mixed.
With respect to encryption
When it comes to the rules of origin proposed by India, the closest contrast would be with countries that have sought to limit encryption (then it becomes easier for law enforcement to determine the origin of a message). In Russia, an authorization is required for the circulation, maintenance, delivery, development or manufacture of encryption facilities and the Federal Security Service may need the delivery of all information necessary to decrypt encrypted messages.
U.S. laws do not include decoding, but require that all telecommunication service providers are required to submit user’s communication if the government asks for the same.
In France, private entities such as individuals providing an encryption service must decrypt the data encrypted by their services within 72 hours.
The possibilities are that the new guidelines could help the nation to curb the circulation of fake news as well as unlawful content via social media and the misuse of technology. But there is no denying that the impact it can have on people who express their opinions in private for unwanted consequences that may be completely irresponsible and legally correct.
For now, social media apps have asked for six months to put in place other measures and comply with the rules that have given this pandemic and also because platforms like these have been a lifeline. But the government is strict in implementing these rules without any delay.
The new rules appear to strengthen political control and upsurge fear in the minds of users. They should have become in a more negotiable way with parliamentary processes. To protect the rights of citizens, India may set up a regulator such as office of communication like in the United Kingdom. However, the introduction of new rules for social media is still a division moment that will transform the digital information ecology in our country.
In Antony Clement Rubin v. Union of India, the court was presented the same scenario regarding the traceability of the first sender of a message and the linking of Aadhar and social media accounts for verification. It is in this petition, an expert professor from IIT Bombay suggested that detection of the first sender messages may make more susceptible to manipulation. In addition, important intermediaries on social media will have to store all messages, media on their servers, making this information more hacked, thereby compromising the security of the users.
The rules do not specify how this information should be stored and security protocols should be followed if this information is to be stored as evidence. News and current affairs also include analysis of recent events, in particular of a socio-political, economic or cultural nature, available via the Internet in the form of computer networks. Hence the government may take a broader ambition of transgressions concerning the supremacy and integrity of our nation, country’s safety, friendly relations with foreign countries, also public order or urging to commit a crime, under which government may ask intermediaries to open the first sender of the post or may request the publisher to get the content be removed.
The courts will therefore be responsible for determining whether such information threatens any of the above reasons. The new rules are intended to censor public scrutiny of this information. Censorship of public opinion, as an analysis, is not a good measure, because it discourages people who do not belong to any institution or union from expressing their opinions freely. Criticism can be harsh or outrageous, people should have the freedom to express themselves freely but only subject to knowledge of the facts.
Establishing guidelines for OTT platforms is a useful and necessary step after the recent controversy over “Tandav” and “Gunjan Saxena – The Kargil Girl”. Example -Suo moto powers given to government departments to block all content under section 69-A (I) of the IT Act will give legislators powers that are universal and contrary to the doctrine of separation of powers. A recent study by Pricewaterhousecoopers found that India is the fastest growing OTT market where subscription is the main driver of revenue. Therefore, the proposed regulatory structure and the full powers of the ministry must be reviewed.
New Information Technology 2021 rules have both good and bad effects. These rules are another tool in the hands of the government to use authorities to reach people who express an opinion contrary to their ideas and interests. Violation of these rules will result in losing of protection afforded to intermediaries under section 79 of the Information Technology Act 2000 that forces the social media companies to follow the rules.
1) Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at: https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749 (Last visited on 15-06-2021)
2) New social media rules – an analysis, available at https://blog.forumias.com/new-social-media-rules-an-analysis/ (Last visited on 15-06-2021)
 WP Nos. 20774 and 20214 of 2018
Author: Jespreeth Ranji, Amity University, Mumbai
Editor: Kanishka Vaish, Senior Editor, LexLife India.