New IT rules leave social media companies, govt at crossroads

As new intermediary rules kick in, the biggies continue to be on collision course with the government

In the second half of May this year, Congress approached Delhi Police seeking an investigation and asked Twitter to act against certain handles after BJP leader Sambit Patra tweeted screenshots of a ‘toolkit’ which he charged was created by the main opposition party to defame the Narendra Modi government and its Covid-19 response. Complaints were also filed in several other locations, including in Chhattisgarh’s Raipur where police registered a case. Soon after, Twitter also tagged Patra’s tweet as ‘manipulated media’, prompting the BJP-led government to step in to ask the social media giant to drop the tag as it could impact an ongoing investigation.

Twitter did not toe the line and days later, Delhi Police personnel “visited” its offices one evening to “serve” notice to its officials to join the probe. Twitter hit back with a statement on the “intimidation” it was facing, prompting Delhi Police to say that it was seeking “dubious sympathy” while refusing to share information it possesses to help the investigation.

Story behind the new IT rules

The stage was set for an intense debate online and offline about the government’s intent – a section argued that the government wanted to control the social media space which had put the Modi government on the mat over its response during the second wave of Covid-19. International media reports on India’s handling of the pandemic were shared widely. Another section said the government is being targeted by social media unnecessarily and it should be tamed. As the debate intensified, then came the deadline for complying with the social media intermediary rules, amid concerns being raised about privacy and other issues. It took the virtual world by storm as big tech companies scrambled on what to do while WhatsApp approached the Delhi High Court against the rules that makes it mandatory to share the origin of chats, which it said would force them to break the end-to-end encryption and compromise privacy.

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It was in 2008 that the Information Technology Act was amended to provide exemption to intermediaries from liability for any third party information, among others. Following this, the IT (Intermediary Guidelines) Rules, 2011 were framed to specify requirements for intermediaries to claim such exemption. Rising incidents of social media posts inciting violence, especially mob lynchings on the basis of messages on child-lifting that were fake, prompted a debate in Parliament following which the Ministry of Electronics and Information Technology (MietY) started work on amending the rules. The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 was notified on February 25 this year and it came into force from May 26.

The new rules require large social media platforms like Twitter, Facebook, Instagram and WhatsApp to appoint a chief compliance officer, nodal contact person and resident grievance officer, monitoring of objectionable content, preparing monthly compliance reports and removal of objectionable content. It also wants social media firms to adopt features such as traceability of messages and voluntary user verification. Non-compliance with the rules would result in these platforms losing the intermediary status that provides them immunity from liabilities over any third-party data hosted by them. In other words, they could be liable for criminal action in case of complaints.

In its petition, WhatsApp argued that the Rule 4(2) of the new rules, which mandates a messaging service to trace the originator of a message, will break its end-to-end encryption and the privacy principles underlying it. The government argues that it is necessary to identify the originator of a message. Activists argue that in the garb of tackling crime, the government’s intent is to keep a track of civil society members who are organising protests and opposition to the regime. The debate over social media being used in organising protests first surfaced in India during the anti-corruption protests under the leadership of Anna Hazare in 2011 when the Manmohan Singh government was in power. The chatter about regulating social media gained some momentum in 2012-end when the capital again erupted in protest following the Nirbhaya gangrape case.

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Along with other factors, social media too played a part in Modi assuming power in 2014 but his opponents, who are now wise enough to use it, too logged on. Lynching incidents were called out and it led to friction between WhatsApp and the MietY. The Facebook-owned company was asked to address concerns and appoint grievance redressal officers and disclose the originator of the messages when law and enforcement agencies sought it. The issue went into the back burner soon but was ignited again during the massive protests against the Citizenship Amendment Act (CAA) in 2019. Farmers’ protests last year also added problems to the government as social media emerged as a source for mobilisation.

Social media platforms faced trouble from the government in all these episodes, as they insisted on removing certain contents it claimed as “fake news”. There were also claims that posts with a hashtag demanding resignation of Modi was pulled down recently by a social media giant. The government also forced Twitter, Facebook and Instagram to pull down several posts, including those of politicians and journalists, as criticism of the government mounted on these platforms against its handling of the pandemic. It’s not just in India but abroad too social media platforms were at loggerheads with the governments. WhatsApp is fighting a case in Brazil on the issue of traceability while Russia has imposed a hefty fine on Twitter for failure to follow directions from the government on removing certain content.

On its part, the government says that fundamental rights always come with certain limitations. IT Minister Ravi Shankar Prasad says social media users have nothing to fear about new rules, which will empower them and prevent hate crimes and fake news. However, Twitter has a counter: It is concerned about the requirement to make an individual (the compliance officer) criminally liable for content on the platform, the requirements for proactive monitoring and the blanket authority to seek information about our customers. This represents dangerous overreach that is inconsistent with open, democratic principles. Most of the companies have reservations but many have started complying with it. Google says that the new rules do not apply to it as it is a search engine.

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The government also says though it is not interested in the content of the message, it wanted to know who first posted the message in case it was a mischief. This will be required in matters related to country’s security, law and order or with regard to rape or any other sexually explicit material. For the social media companies, India is a huge market and they face a dilemma on the extent to which it can take on the government. WhatsApp has 53 crore users in India while You Tube has 44.8 crore, Facebook 41 crore, Instagram 21 crore and Twitter 1.75 crore. Even Koo, an Indian version of Twitter that the government is now promoting in a big way, also has around 60 lakh users.

Big market means big advertising money for big tech companies, which are mostly based in the United States. The government complains that the social media companies that benefit from the Indian market readily follow the rules of the West but when it comes to India, they are reluctant. The social media companies want more deliberations with the government and they think both could choose a middle path rather than confrontation.