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On 25th February 2021, the government notified new rules under the Information Technology Act, 2000 (“IT Act“) for monitoring social media digital media platforms via The Gazette of India, notifying the rules will be effective after 3 months, that is from 26th May 2021. It was named “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”[i].
This new set of rules aimed to:
- Expand the responsibility of the web-based media stages, (for example, Facebook, WhatsApp, Telegram, Signal, Instagram, Twitter, and so on) to forestall their abuse and misuse.
- Empowering the clients of online media by building up a three-level redressal system for productive complaint goals. The Intermediary Guidelines have been outlined in the exercise of forces under area 87(2) of the IT Act and override the past Information Technology (Intermediary Guidelines) Rules, 2011.
Let’s look at a case to get the base clear.
In Avnish Bajaj V. State[ii.] a student of IIT Kharagpur Ravi Raj uploaded an obscene MMS for sale on baazee.com. From the outside, it didn’t appear like it was an MMS video unless the user clicks on it and views it. When someone pointed it out to the baazee.com officials, the website deleted the content of that user. The content was uploaded on 24th November 2004 and was deleted on 29th November 2004. Later on, this issue caught the eyes of the Delhi Crime Branch, they investigated the same and filed a charge sheet against the uploader, Ravi Raj, and also against the owner of the baazee.com, Avnish Bajaj. If you look at the facts the website didn’t know about the obscene content earlier, as soon as they came to know they deleted that content. What do you think, the website should be held liable for the same?
The court decided that the owner of the website was not responsible for any of it and it would be unfair to arrest him for the offence he didn’t commit.
Here it clearly shows that Intermediaries are not liable for what their users do.
Now if we look at the new rules, these immunities that were provided to the intermediaries are removed to a certain extent.
Let’s see the main provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:
It consists of three parts-
- Part 1 consists of the title, definitions, and terms.
- Part 2 is focused on social media platforms like WhatsApp, Facebook, Twitter, and so on.
- Part 3 is focused on OTT (Over The Top) platforms and digital news.
In this article, we’ll only talk about Part 2 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The government gave three months period for the social media platforms to accept the terms and appoint:
- Chief Compliance Officer shall be responsible for ensuring compliance with the Act and rules made thereunder.
- Nodal Contact Person for 24×7 coordination with law enforcement agencies.
- Resident Grievance Officer shall be responsible for taking complaints from the users that concern the rules. It would be the duty of this officer to acknowledging complaints within 24 hours and resolving them within a reduced timeline of fifteen days.
These requirements will increase the tax liability of the company, thus discouraging the small innovative platforms to continue in India.
The intermediaries should at least once a year remind their users that if they do anything illegal the platform can delete the user’s account.
The intermediaries have to publish a monthly compliance report mentioning the details of complaints received and the action taken for the same.
The data retention period has been doubled to six months for investigating purposes (Meaning the social media platform must keep data of a deleted user for six months). As of date no robust data protection laws are there in India, so no one knows which data the platform extract and which data will they keep for six months from the deletion of the account.
The intermediaries must enable text traceability of the originator of the information available on their platform if required by the court of competent jurisdiction or competent authority. That means if the government asks the platform to give details of the user that created a certain message the platform can’t deny providing the same. Technically doing this is not possible on WhatsApp, Signal, or Telegram because they offer end-to-end encryption, the messages are not stored on the platform’s servers, they have no data about the texts. So to comply with these rules, WhatsApp, Signal, and Telegram have to break their End-to-End Encryption feature which means the end of privacy.
Few reasons were given by the government for which government can force social media platforms to take actions-
- Sexual content and child abuse.
- Content “Against Public Order”. (That is a broad term and can be misused by the government, like if the government someday says criticising the government is against the public order then the social media has to delete those posts and delete the account of the users and provide information of the posts as well as the user sharing them along with the creator, in other words, END OF FREE SPEECH).
Like a few months ago the government asked Twitter to take down 1,178 accounts, Twitter took down a few of them but not all as no legit reason was there to delete every 1,178 accounts. It was just every account was criticising the government and was supporting the farmer’s protest. And according to the new rules government can force Twitter to take action with these rules. So that if Twitter denies again as they did before, the platform has to face legal consequences from the government. The company also published a blog in which they said, “we do not believe that the actions we have been directed to take are consistent with Indian Law”[iii.]
If in the future let’s say WhatsApp and Signal comply with the new rules users can still protect their Right to Privacy by using a VPN and A VOIP number to register on social media and always using a VPN while using the social media accounts. Don’t worry it’s legal to use both of them. The reason I’m suggesting these is that I strongly believe in the Right to Privacy.
Let’s talk about the major social media reactions to the new rules.
Also read: Cryptocurrency v/s Law in India
Facebook said it will agree with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 announced by the Indian government in February. Reacting to inquiries from Mint, about where the organisation remains concerning consistency, Facebook said, “We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. According to the IT Rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform.”
Nonetheless, the organisation didn’t say by when it could conform to the standards, and what is expected of it for consistency. The Indian government had reported the new Intermediary Guidelines on 25 February, giving web-based media firms three months to conform to them, which finished today. Facebook additionally overlooked an inquiry posing to whether the stage will close down after 25 May, in the event that it hasn’t gone along.
End-to-end encrypted messaging software Signal isn’t in compliance with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, officials aware of the matter said. The privacy-focused app is also possible to be responsible under the Information Technology Act and the provision of safe harbour in its far not likely to apply to it due to the non-compliance, they added.
The officers said the application, has not shared the info of a compliance officer with the authorities according to the new guideline. Signal does not have an office in India. As fas, the statistics show Signal won’t compromise their privacy based stand just for one country.
End-to-end encrypted messaging software Telegram has accepted the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, and completely complied with the government but it’s unclear as for not. They have appointed Abhimanyu Yadav as its grievance officer in June-mid but they don’t have an office in India yet.
Google has accepted compliance with the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 completely. It has also published its first transparency report on 1st July 2021, under the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021. The report consisted of 96.2% related to copyright issues, 1.3% trademark-related issues, and 1% related to defamation.
Twitter seems to be playing hide and seek with the government. They are saying they are accepting the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, and asking for some time to appoint the 3 officials that are mentioned in the guidelines. They also stated that they will make their first compliance report public by 11th July 2021. On the other hand, they are ready to challenge the new rules as well. Later Twitter India unit has appointed an interim chief compliance officer and Resident Grievance Officer and will soon designate another executive to compliance with the new IT rules, the social media giant said in court on 8th July 2021, amid tensions with the government. Twitter will try to fill the appointment of the nodal contact person’s job on an interim basis within 2 weeks on or before July 11, the company said in the June 8 filing to the Delhi High Court.
WhatsApp invoked the 2017 Justice K. S. Puttaswamy V. Union Of India[iv.] case to contend that the traceability provision is illegal and against individuals’ key right to security and privacy as underlined by the Supreme Court decision. The plea expresses that the court should pronounce the traceability condition as “illegal” and should not permit it to come into power. It is likewise difficult for the statement which puts “criminal obligation” on its workers for rebelliousness, it is learned.
The company has given a nitty-gritty blog entry clarifying why traceability won’t work. A WhatsApp representative said that the prerequisite to ‘trace’ visits would be the “likeness requesting us to keep a unique mark from each message sent on WhatsApp.” This would imply that the stage should break start to finish encryption, which is turned on of course for all messages.
Traceability would mean redesigning the application only for the Indian market, which is probably not going to occur. Start to finish encryption guarantees that no outsider, not even the informing application itself can track or understand messages.
“We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us.” a representative said in an articulation.
In the blog entry[v.], WhatsApp says it is in support of “reasonable and proportionate regulations”, yet can’t uphold “eroding privacy for everyone, violating human rights, and putting innocent people at risk.”
WhatsApp also stated it’s anything but a committed group, which “audits and reacts to substantial law implementation demands.” It says it has consistently reacted to “legitimate demands by giving the restricted classifications of data accessible to us, reliable with relevant law and strategy.” It likewise takes note that they have a “group dedicated to helping law authorisation every minute of every day with crises implying approaching damage or hazard of death or genuine actual injury.”
But they have appointed its grievance officer Mr. Paresh B Lal to show partial compliance.
Now the date is gone, it’s the government vs the companies not complying with the new set of rules. I’m leaving the conclusion part on the viewers, my conclusion might not be liked by everyone but I’m pretty sure everyone will definitely love their own conclusions. So I’m leaving you all with these questions and decide for yourself.
What do you think as a user was these rules necessary or it’s the government trying to control the speech of the people?
Do you think that the government is pressing media and decorating its image with good pictures rather than everything including facts?
What do you think about the WhatsApp scenario? Is WhatsApp doing wrong by fighting a lawsuit against the government?
Does the right to privacy matter?
Shall criticising the government or its new laws be considered as FREE SPEECH or a CONTENT AGAINST PUBLIC ORDER?
What will you as a user do if WhatsApp loses the case and decides to comply with the rules and remove the end-to-end encryption feature to enable traceability, switch to other application that has not accepted the terms? OR You’ll continue to access those applications using a VPN and VoIP number?
Do you really care about your online privacy?
[i.] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, India, available at:
https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary (Last modified June 2, 2021)
[ii.] Avnish Bajaj v. State 2008 Indlaw DEL 763, 2008 (150) DLT 769, 2008 (3) JCC 1726, 2008 (Supp5)
[iii] Updates on our response to blocking orders from the Indian Government, available at:
https://blog.twitter.com/en_in/topics/company/2020/twitters-response-indian-government (Last modified February 10, 2021)
[iv.] Justice K. S. Puttaswamy V. Union Of India (2017) 10 SCC 1
[v.] What is traceability and why does WhatsApp oppose it?, available at:
https://faq.whatsapp.com/general/security-and-privacy/what-is-traceability-and-why-does-whatsapp-oppose-it (Last visited July 11, 2021)
Author: Nikhil Thakur, Law College Dehradun, Uttaranchal University.
Editor: Kanishka Vaish, Senior Editor, LexLife India.