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Over the past few months, our reliance on the internet has seen no bounds. We have relied on the internet for all our needs, from groceries to meetings and owing to the pandemic, even vaccines. The growing reliance of people and businesses on technology and the internet has been the guiding factor for a lot of new innovations with new products being launched that address our needs such as for education, groceries, clothing, housing, communication. India Brand Equity Foundation reports the Indian e-commerce market is expected to touch US $ 200 billion by 2026 from US$ 38.5 billion in 2017.
The government has also recognized the indispensable commodity internet has become and sought to regulate how it operates.
In India, the charter of internet law is the Information Technology Act, 2000 (“IT Act”) that governs electronic transactions and communications. This law also empowers the government to frame rules and safeguards for specifically regulating things like Digital Signatures, interceptions, collection of sensitive data, etc.
Recently, the government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules” or “Rules”), which have sparked a myriad of debates online, not only amongst users but have also triggered conflicts between the Government of India and corporations such as Facebook, Twitter and Google that are going to get the most affected by it.
What are Intermediaries?
Intermediary, in a general sense, means those service providers that act as facilitators of online content between the two parties and who on behalf of other people receive, store or transmit electronic records. These intermediaries include internet service providers, search engines, online payment sites, network service providers, telecom service providers, etc.
The IT Act in Section 79 contains a safe harbor provision that shields them from liability for any third party information, data or communication that has been facilitated by them upon fulfilling certain due diligence guidelines. Simply put, Twitter or Instagram isn’t responsible for Kangana Ranaut’s posts or Elon Musk’s pump and dump schemes simply because they happen to use their platform.
What Are the New Intermediary Guidelines?
The due diligence requirements that allow intermediaries a safe harbor were contained under the IT (Intermediary Guidelines) Rules, 2011, which now have been replaced by the 2021 Rules. Accordingly, these rules require intermediaries in India to comply with much rigorous requirements such as publication of rules and regulations, privacy policy and user agreement on their website, reporting of cyber security incidents, publishing details of Grievance Officer, acknowledging consumer grievances within twenty four hours, disposing off complaints within fifteen days, etc. If the intermediary is in compliance with these rules, it could not be made liable for any third party content on its platforms.
Further, the 2021 rules provide for categorization of social media platforms into two categories, viz, social media intermediary, i.e. social media platform with less than 50 lakh users in India, and significant social media intermediary, i.e. social media platform with more than 50 lakh users in India. These new rules have introduced additional due diligence requirements such as publishing a monthly compliance report, appointment of a Chief Compliance Officer and having a physical contact address in India.
Additionally, the rules have extended its ambit and are also providing for regulation of online curated content (“OTT”) platforms, news aggregators and publishers of news and current affairs.
Why Are Corporations Having a Hard Time Accepting the 2021 Rules?
A number of petitions were filed before the Delhi High Court, Madras High Court and Kerala High Court by WhatsApp, Google, Quint, Foundation for Independent Journalism and others, challenging the validity of 2021 Rules. One of the major concerns that have been expressed by the petitioners is with respect to the traceability requirement. The rules require significant social media intermediaries to enable identification of first originator of information, as the same may be required for the purpose of identifying the originator of information for certain offences, such as those pertaining to sovereignty and integrity of country, security of state, rape, etc. The petitioners are of the view that this requirement would be in violation of users’ right to privacy and freedom of speech and expression. It would further require the messaging platforms such as WhatsApp to do away with end to end encryption.
Not just that, the rules are adding to the companies’ infrastructural and operational costs, for they would be required to re-work certain technicalities in their interface. For those significant social media intermediaries that do not have a physical office in India, they are now required to have one, thus adding further to their compliance woes. Some Petitioners are also concerned about deployment of additional grievance and nodal officers, in accordance with the rules. It has also been prescribed for intermediaries to deploy automated tools which will help in determining and identifying any information pertaining to offences like rape and child sexual abuse.
Additionally, news aggregators have specifically challenged Part III of the rules, that allows for regulation of publishers of news and current affairs. They are claiming that they do not fall under the definition of an ‘intermediary’ under the IT Act, and thus, these rules and the due diligence requirements therein should not extend to them. These platforms have further claimed that certain terms used in the rules are vague and give unfettered power to the government, and therefore, they go against the directions of the Supreme Court (Shreya Singhal vs. Union of India). Moreover, the rules have introduced a three-tiered regulatory mechanism for publishers of news and current affairs and OTT platforms, and in their opinion, adds to the unfettered and excessive powers of the government.
Banning Twitter, WhatsApp, or Instagram?
In the last week of May, we saw media reports, Instagram posts and WhatsApp forwards claiming that all popular social media platforms such as WhatsApp, Instagram, Facebook, YouTube and Twitter would be blocked in India. This led to a public tension and that is when the 2021 rules drew significant public attention.
Twitter was flooded with Orkut memes during that period, with netizens reminiscing about good old days, after speculations over social media giants like Twitter and Facebook’s probable ban in India started making rounds on the internet.
The 2021 rules, which were notified on February 25, 2021, gave intermediaries three months to comply with the due diligence requirements contained therein. This period ended on May 25, 2021, and that is when the public cry of banning of social media platforms started. However, these platforms could not be banned for failing to comply with the requirements of the rules. Non-compliance with these rules would only un-shield them of the protection granted under the IT Act and they would no longer be immune to any third party liability.
This being said, while most of the intermediaries did finally comply with the guidelines, the battle between government and twitter went on for a long time. Twitter was adamant on not complying with the 2021 rules. It asked for a three months extension from the Indian government to comply with these rules, however, a plea knocked the Delhi High Court’s doors to direct twitter to comply with the guidelines. Accordingly, the court directed the platform to follow the rules until the courts adjudicate on the validity of the 2021 intermediary rules.
Future Course of Action
While the battle between the Indian government and the social media platforms/ intermediaries is ongoing, questions are being raised about the extent to which democratic nations can use their sovereign power to regulate the internet citing public and national interests.
On one hand intermediaries are claiming that the government is setting foot on users’ privacy and bulldozing them with compliance burdens, and on the other, Cabinet Minister Ravi Shankar Prasad alleged double standards on the part of intermediaries, for, as he claims, these intermediaries are following similar rules in the USA. He further claims that the government’s commitment to privacy is unimpeachable and they have come up with these rules in the best interest of users.
Another issue popped up recently was the Delhi Police’s visit to Twitter’s Delhi and NCR office, with respect to the ‘manipulated media’ tag on a post by BJP spokesperson Dr. Sambit Patra. This was another trigger to the conflict between the government and the social media platforms and questions were raised with respect to functioning of social media platforms in an independent and autonomous manner.
With these constant developments happening in the country, challenging the free speech on the internet and the independence of intermediaries, their role is being altered and they are being expected to act as a ‘digital police’. While the petitions are still pending before the courts, it would be interesting to see their stance with respect to these rules when they had upheld the validity of Section 79. Though, in that case, the court struck down a provision from the IT Act, for it being unconstitutional, do we see the same fate for the new 2021 rules, or at least, a few provisions of it? In terms of the challenge to the new rules, a huge responsibility would now be of the judiciary to clear the air around the controversy.