Author: Tanveer Singh, Advocate
The headlines hitting the news for over the past few weeks about the ban on Twitter caused quite a furore among the social media users in India, which is because the Ministry of Electronics and Information Technology(MeitY) on 25th February 2021 notified the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 which supersedes the previous Information Technology (Intermediaries Guidelines) Rules, 2011 and all the digital mediaplatforms were to comply with the said new rules by 25th May 2021.
The new rules aim to bring intermediaries i.e. SMIs and SSMIs, and publisherof news, current affairs and online-curated-contentunder its ambit in order to regulate the propagation, transmission, dissemination of the contentand digital mediato curb the rise in the spread of fake news, obscene and explicit content; harmful for children, cybercrimes against women and such other rampant abuse of the said platforms; which could cause harm to individuals of the society and pose threat to the sovereignty, integrity, and unity of the country. The rules have been crafted in a way that would empower the ordinary users by providing them an option for grievance redressal mechanism and would increase the accountability of all the digital media platforms. It is being argued that the previous rules were not robust and the new rules do provide the solution to the existing problems however, if it is at the stake of privacy and freedom of speech; which not only the users have a right to buy all the digital media platforms too. From Netflix to WhatsApp, each and every application/software accessed via smartphone or desktop is a form of digital media.
If we ideate places such as parks, tea stalls, coffee shops as intermediaries in our physical world, where conversations, sharing of ideas and views, and interaction among the citizens take place and if they are made responsible for every unlawful activity happening at these places, it would be very difficult for them to even run their business. It would completely cripple them. Similar is the case when it comes to regulating the intermediaries in cyberspace. Adhering to the provisions of new rules can have a significant impact. Also, preserving and providinginformation to the government, and the ‘traceability’ clause is going to be a big challenge for the intermediaries as it will break the end-to-end encryption guaranteed by the intermediaries. That would eventually take away the right to privacy of the users. Being said that, the rule which urges the intermediaries to deploy technology or AI based measures is laudable as such measure would proactively identify the obnoxious information or material which is similar or replica of the content which was already removed from the intermediary or made inaccessible to the users. By implementation of this step the hassle to remove or prohibit the obnoxious content would be saved and will restrain the widespread use of such content which earlier used to happen with lightning speed.
However, it appears that these new rules have been introduced in haste without taking into consideration the fundamental rights of the stakeholders and the users and such step eventually threatens the freedom of individuals and intermediaries, confuses ethics with laws, and lacks clarity in defining phrases like ‘illegal', ‘objectionable content’, ‘publisher of news and current affairs content’, ‘first originator’ among others terms in the rules. For instance, the definition of the ‘first originator’ itself becomes contradictory when the rules mention that if the first originator is not residing in India, then the first person to share the information in India becomes the ‘first originator’. Google has filed an appeal before Delhi High Court against the order of the court which declared it as a ‘social media intermediary’. This is where the rules can be said to be equivocal in nature. The order was made in a suit filed by a woman for removal of her photos that were taken from her social media account. These photos were to be removed from pornographic sites globally. The contention of Google is that it is not an intermediary but a search engine and it has a different role compared to a social media intermediary such as Facebook or Twitter. Its function is that of an aggregator and not interaction like social media platforms. The court had issued directions to Google to engage in proactive monitoring through AI tools and de-index such content globally. On the other hand, Google has claimed that it is not possible because it is automated in nature and would significantly affect the right to freedom and speech of people using the platform. The matter is still pending before the division bench in appeal before the High Court of Delhi.
Not complying with these new rules will not lead to the banning of the social media intermediaries or digital media platforms but they would lose the legal immunity which protects them from being sued for the content posted on them. Justice B.N. Srikrishna, retired Supreme Court Judge, has pointed out that demanding traceability of messages amounts to making “inroads into the fundamental right of privacy” and by the implementation of these rules the government attempts to stem criticism of its policies. As long as these platforms were a tool that worked in favour of the government and were used to troll those who raised voices against it, there was no issue. Now with the pendulum swinging the other way, restraining rules seem to have cropped up and these one-sided rules in order to protect the government cannot be supported. It is being argued by WhatsApp that the rules have gone far beyond anything that is permissible in a democracy and seems to be in contravention to the fundamental rights of freedom of speech and expression. The Delhi High Court is yet to decide the said issue in Foundation of Independent Journalism &Ors v. Union of India.It can be inferred from the said development that the government has lost out on the opportunity to improve upon the fundamental rights of the internet users. We know that regulation of cyberspace is the need of the hour but the manner and substance of the new rules needs a revamp and that can be possibly done by framing a dedicated cybersecurity law. Just as we have Indian Penal Code, 1860, which defines and lays down punishments for the criminal acts committed by the individuals of the society, and Code of Criminal Procedure, 1898 which administers the criminal law of the country in the physical world, similarly a robust legislation shall be framed to regulate the cyberspace and social media platforms without compromising with freedoms guaranteed under Article 19(1)(a) and Article 21 of the Constitution. We know that law must be dynamic to match the development of the society; as the cyberspace is progressing with each passing day; raising new challenges for its users, the stakeholders and the government as well.
As defined under Rule 2 (i), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 As defined under Rule 2 (w), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021  As defined under Rule 2 (v), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 s defined under Rule 2 (s), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 s defined under Rule 2 (q), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 As defined under Rule 2 (g), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 Supra note 1. Ibid. As per Rule 3 (1) (g) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 As per Rule 3 (1) (j) of theInformation Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021  As per proviso to Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 LPA 174/2021 before Delhi High Court (pending)  Section 79(1) of Information Technology Act, 2000 W.P.(C) 3125 / 2021 before Delhi High Court (pending) REFERENCES
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified by Ministry of Electronics and Information Technology on 25th February, 2021
Press Release dated February 25,2021 available at https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749