Attacking the messenger

In the midst of a raging pandemic, recent headlines have been dominated with news about social media and misplaced concerns about an impending ban of these platforms. Questions have been raised about the bravado of social media companies to challenge the mighty Indian republic in courts and a defiance of the Indian law. As always, citizens are forced to watch from the sidelines while the public theatre orchestrated by the powerful and mighty plays out.

In December 2004, Avnish Bajaj, CEO of baazee.com, an auction site that was later acquired by eBay, was arrested in connection with a pornographic MMS clip put up for sale on the website. This incident brought into focus the need for websites like ebay that act only as a platform allowing for users to post content or sell goods to be given protection from liability arising out of actions of users. The Information Technology Act, 2000 was, therefore, amended in 2008. This paved the way for a safe harbour that provided protection to intermediaries like Facebook from any legal action arising from content created by third parties.

This safety net was conditional on intermediaries - the definition of which is broad enough to include cyber cafes, telecom service providers and social media platforms - following the guidelines laid down. These guidelines saddle the intermediaries with adjudicatory responsibilities and force them to decide the legality of any content posted on their platforms. In the celebrated Shreya Singhal judgement delivered on March 24, 2015, the Supreme Court read down these rules holding that intermediaries cannot be expected to judge the legality of any content take-down requests. That job should be left to courts or government agencies who can issue reasoned orders. Misinformation or disinformation colloquially known as “fake news” is a real issue on the internet. Many governments across the world starting from Singapore to the UK have either introduced or are in the process of introducing legislation to tackle this menace.

The Government of India (GOI), ostensibly, sought to counter the misinformation problem by amending the Intermediaries Guidelines Rules by bringing in more stringent provisions. Draft rules were put up for consultation in December, 2018.

After two years, the new rules were notified on February 25, 2021. Vague and ambiguous terms, beyond the Article 19(2) restrictions on speech, were introduced as prohibitive content that are guaranteed to result in removal of content by platform companies to protect themselves. The new rules also establish two new categories of “publishers of news and current affairs content” and “publishers of online curated content,” subjecting them to an entirely new digital code of ethics. These are online news portals and the likes of Netflix, Hotstar and Amazon Prime. This decision to expand the scope of the rules beyond intermediaries is outside the scope of law and never intended or discussed in Parliament.

Personally liable

The new rules also created a new classification of intermediaries called the Significant Social Media Intermediaries(SSMI), which was defined as those social media intermediaries having registered users above 50 lakh in India. These SSMIs are mandated to have three officers: A chief compliance officer (CCO), a grievance officer and a nodal officer.

They need to be residents of and mandated to have a physical office in India. This seemed to be borrowed from the playbook of the UPA government that pushed Research In Motion, the company behind Blackberry, to have their servers in India so that the government could gain access to the secure messaging services offered. The more things change, the more they stay the same.

The new rules also mandate the CCO to be personally liable in any proceedings related to third-party content where the platform is found to have failed in observing these rules. We are in the Avnish Bajaj landscape yet again, defeating the very purpose for which this amendment to the law was brought in the first place.

A trailer of things to come was provided by the recent “special” visit of the Special Cell of the Delhi Police to the closed offices of Twitter India in connection with the labelling of a tweet of the BJP spokesperson Sambit Patra as manipulated media and the subsequent FIR. This incident confirmed the fears for personal safety of those employed by the platforms and clearly showed how these employees could be a soft target for the government to exercise control over the big platforms. The surveillance plans of the GOI were severely challenged by the ease of encryption offered to the masses by messaging platforms like Whatsapp. The attack on encryption was out in the open when India joined the Five Eyes Alliance (for Intelligence) in demanding backdoor access to end-to-end encrypted chats from tech companies. The new IT rules force the messaging companies to trace the originator of any message when demanded by the government. Such an order can be issued without any judicial scrutiny. In a country where thousands of telephone tapping orders are issued every month, it is anybody’s guess how frequently such orders will be issued.

Media is loving this distraction as complicated, nuanced policy debates are played out on national TV pitching `Big Tech v GOI as users’ rights are trampled upon. While the ministers have repeatedly stated that GoI does not intend to break encryption, there is widespread scepticism amongst technical experts about the feasibility of compliance with the rules while maintaining strong end-to-end encryption. Surveillance capitalism has ensured that each word that you type is stored and analysed to profile and sell to the biggest bidder. Users are slowly waking up to this realisation across the world spawning a demand for secure communication and services that offer privacy as evidenced by the increased acceptance of alternatives like Signal.

However, the compliance burden imposed by the new rules could make many of these alternatives disappear from India. Government knows that putting pressure on bigger players will make them fall in line risking the privacy of all the users to solve a problem of some bad apples. As the large messengers gets strangled, the compliant subservient smaller companies - a la the Chinese model - will be celebrated while true innovation and freedom will suffer.

Newly empowered by the fundamental right to privacy and scared of government and corporate overreach in their personal affairs, people are bound to look for alternatives that protect their privacy in ways that are harder for the government to invade even for legitimate reasons because there are no big companies to threaten. It is in everyone’s interest to stop this theatre and go back to the drawing board to come up with regulations that protect people while accommodating genuine concerns of the government and businesses.

(Sugathan is a technology lawyer and Legal Director, SFLC.IN; Choudhary is Legal Director, Software Freedom Law Center and Founder, SFLC.IN)