Government vs Social Media Companies: Are the new guidelines an attempt to stifle dissent and criticism?

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There were speculations in India on Tuesday (May 25) that social media platforms like Twitter and Facebook would be shut down in the country after midnight.

These speculations were not unfounded. In fact, the deadline for implementation of the new social media guidelines implemented by the central government in February was ending on the night of May 25 and many big social media companies had not yet followed the instructions.

On Tuesday itself, messaging app WhatsApp filed a case in the Delhi High Court challenging the government’s new social media rules, in which it said that if it provides access to encrypted messages under these rules, it will violate people’s ‘right to privacy’. Violation will happen.

It may be noted that Rule 4(2) of the Information Technology (Intermediaries Guidelines and Digital Media Code of Conduct) Rules, 2021, issued in February, states that social media intermediaries with more than 50 lakh subscribers shall ensure that any To identify the origin of the chat or message.

Attack on the right to privacy?

In a statement, a WhatsApp spokesperson said that “tracing” chats from messaging apps is equivalent to asking us to keep a fingerprint of every single message sent on WhatsApp which would break end-to-end encryption and fundamentally Will undermine people’s right to privacy”.

A WhatsApp spokesperson also said that they “join people, society and experts around the world to continually protest requirements that would violate the privacy of users of our app”.

He also said that in the meantime he would engage with the Indian government on practical solutions aimed at keeping people safe, including responding to legitimate legal requests for available information.

On Thursday, Twitter urged the Ministry of Electronics and Information Technology to give three more months to comply with the new rules.

A Twitter spokesperson told the BBC on Thursday: “We are currently concerned about recent incidents regarding our employees in India and the potential threat to people’s freedom of expression.”

According to reports, Facebook has said that they aim to comply with the provisions of the IT regulations and continue to discuss some of the issues that require greater engagement with the government. They are working to implement operational procedures and improve efficiency as per IT regulations.

On the other hand, a statement made by Google said that they feel that the work of securing their platforms is not complete and they will continue to improve their existing approach. Develop our policies and be as transparent as possible about the way decisions are made.

Government’s counterattack

The Indian government has reacted sharply to WhatsApp going to court.

The government has said in a statement that since October 2018, WhatsApp has not made any specific objection in writing to the Indian government regarding the need to trace the originator of the case in relation to serious crimes. The government said that WhatsApp sought extension of time to implement the guidelines but did not say that it is not possible to trace where a message originated.

The government has also said that despite getting enough time and opportunity, WhatsApp’s going to court is an unfortunate attempt to stop the guidelines from taking effect.

‘Rules in the public interest’

Regarding the provision to trace the origin of the messages, the government said, “It is in the public interest that who initiated the mischief to commit such offences, should be traced and punished.”

At the same time, it also said that it cannot be denied that “how WhatsApp messages in cases of mob lynchings and riots etc. are repeatedly circulated and circulated whose content is already in the public domain. The role is very important.”

The government says that on the one hand, WhatsApp wants to make a privacy policy mandatory in which it will share all its user data with its parent company Facebook for marketing and advertising purposes and on the other hand it wants to refuse to implement the intermediary guidelines. Makes every effort to maintain law and order and to curb the menace of fake news.

The government has also said that WhatsApp refuses to implement the intermediary guidelines by making an exception that messages on the platform are end-to-end encrypted. According to the Ministry of Electronics and Information Technology, the rule of locating the first source of information is mandatory for every important social media mediator, irrespective of the mode of their operation.

Union Minister Ravi Shankar Prasad has said that the whole debate whether encryption will be maintained or not is wrong. According to him, it is entirely a matter of the social media intermediary whether the right to privacy is ensured by using encryption techniques or any other technology.

According to him, the Government of India is committed to ensuring the right to privacy of all its citizens and at the same time seeking the necessary means and information to ensure public order and maintain national security. According to him, it is the responsibility of WhatsApp to find technical solutions to ensure both these things, whether through encryption or some other method.

What are the new rules?

On 25 February, the Ministry of Electronics and Information Technology, Government of India notified the Information Technology (Intermediate Guidelines and Digital Media Code of Conduct) Rules 2021. The ministry said this was done amid growing concerns about the lack of transparency, accountability and rights of users related to digital media and after detailed consultations with the public and stakeholders.

According to these new rules, all intermediaries including social media will have to follow due diligence or due diligence. If they do not do so, they will not get the protections given by law. Also, these rules ask the mediators to set up a grievance redressal mechanism and put the onus on the intermediary to ensure the safety and dignity of users, especially women users, online. Moderators will also be responsible for removing illegal information in accordance with these rules, giving users an opportunity to be heard and establishing a voluntary user verification mechanism.

For social media intermediaries who have over 50 lakh subscribers, the government said they will have to appoint a chief compliance officer who will be responsible for ensuring compliance with the Act and rules.

Also, these big intermediaries will have to appoint a nodal liaison officer for round the clock coordination with law enforcement agencies and appoint a Grievance Officer who will work within the grievance redressal mechanism. Only those people who are residents of India will be appointed on these posts. Also publish a monthly compliance report mentioning the details of complaints received and action taken on complaints as well as the content actively removed by these social media moderators.

What were the reasons given for introducing these rules?

The government had said that these rules substantially empower ordinary users of digital platforms to seek redressal of their grievances and to seek accountability in case of violation of their rights.

The government had also said that as far as the development of social media mediators is concerned, they are no longer limited to playing the role of pure mediators and often become publishers and these rules are ‘liberal with a liberal self-regulatory framework’. A good mix of ‘touch’.

It was also clarified that these rules work on the existing laws of the country that apply to online or offline content. The government had stated that “publishers with respect to news and current affairs are expected to adhere to the Press Council of India’s Journalistic Conduct and Program Code under the Cable Television Networks Act, which is already applicable to print and TV. Therefore only a level playing field has been proposed.”

While disclosing these rules, the government had said that social media platforms have enabled common Indians to show their creativity, ask questions, be informed and freely share their views, including criticism of the government and its functionaries.

‘Have to be accountable to the law’

At the same time, it was also said that the government accepts and respects the right of every Indian to criticize and disagree as an essential element of democracy. Noting that India is the world’s largest open internet society, the government welcomed social media companies to operate, do business and make profits in India, saying that “they have to be accountable to the Constitution and laws of India”. “

The government says that while the proliferation of social media empowers citizens on the one hand, on the other gives rise to some serious concerns and consequences which have multiplied in recent years. The government had said that “these concerns have been raised from time to time in various forums including Parliament and its committees, judicial orders and civil society deliberations in different parts of the country” and “similar concerns have also been raised all over the world”. and it is becoming an international issue.”

Explaining its intention behind framing these rules, the government had said that “some very disturbing developments have been noticed on social media platforms recently” and “the constant spread of fake news has forced many media platforms to have a fact-checking mechanism”. forced to make

The government said “the rampant abuse on social media to share morphed images of women and revenge porn-related material often jeopardizes the dignity of women” and “in openly immoral ways of promoting corporate rivalry.” The misuse of social media has become a major concern for businesses to deal with”. It had also said that “instances of use of abusive language, abusive and obscene material and disrespect towards religious sentiments are increasing through these platforms.”

Describing the need for new rules, the government said that “in the last few years, increasing incidents of misuse of social media by criminals, anti-national elements have created new challenges for law enforcement agencies” and “for recruitment of terrorists in these”. inducement, spread of obscene material, spread of enmity, financial fraud, promotion of violence, public order etc”.

According to the government, it was found that at present there is no robust complaint mechanism in which ordinary users of social media and OTT platforms can register their grievances and get it redressed within the stipulated time frame.

The government said that the lack of transparency and absence of a robust grievance redressal mechanism has made users completely dependent on the whims and fancies of social media platforms. According to the government it has often been observed that a user who has spent his time, energy and money in developing a social media profile, is left with no remedy if his profile is taken up by the platform without giving him an opportunity to be heard. banned or removed.

Government’s intention

On this entire development, cyber law expert Pawan Duggal says that “the government will now start tightening the screws”.

They say that these rules have hung a sword on the heads of companies and where this sword will be used against companies cannot even be guessed. According to him, through these rules, the government tightens its control over the intermediaries and service providers and compels them to do certain things and if they do not, they can be sent to jail.

According to him, the reason for this is that the rules that have come have completely changed the legal framework. He says, “Earlier it used to be that information was sought from the service provider and if the information was not received, then the matter did not proceed. According to the new rules, if the service provider does not give information, then criminal action can be taken against them and they can be punished for offenses under the IT Act and the Indian Penal Code. So criminal liability has been established from February 25. If the rules come into force from February 25, then the rules are to be implemented from the same day. Appointment of Grievance Officer The time limit was given for three months. These rules are applicable to those social media moderators who have more than 50 lakh users.”

Duggal says that some companies have made these appointments and some have not and those who have not made these appointments may face criminal action. “There is a provision for criminal action, but whether it will be implemented or not, it will tell the time to come or the political will.”

Founded in 2009, Access Now is a non-profit organization that defends and expands the digital civil rights of people around the world. The BBC spoke to Raman Cheema, its senior international advisor and Asia Pacific Policy Director.

According to Cheema, the rules issued by the government are unprecedented and comprehensive. They say that the government had to define only due diligence or due diligence for Internet intermediaries such as telecommunications companies, network companies, social media platforms, search engines or news websites that can host user comments. “But instead of defining a narrow subject, they have made a law without going to Parliament, which seems to be aimed at preventing tech platforms from protesting and being forced to follow government or political directives.”

Cheema says that this is an attempt to scare and kill the sector. The time when these rules were brought is very doubtful. He says, “This was done three weeks after the government’s dispute with Twitter when Twitter said that whatever they were being asked was not legal according to the government’s own laws.”

Delhi Police at Twitter Office

Just a few days ago, Twitter labeled a tweet by ruling Bharatiya Janata Party (BJP) spokesperson Sambit Patra as “manipulated media”.

BJP leaders recently shared screenshots of a document on Twitter that said it was created by the main opposition Congress to highlight the government’s failure to tackle the pandemic.

Congress complained to Twitter that the documents were bogus, following which Twitter flagged some posts, including Patra’s tweets, as “manipulated media”. The “manipulated media” tag is applied to posts that contain videos, audios and images that have been deceptively altered or fabricated, under the Twitter Rules.

Delhi Police said on Monday that police officials had gone to the Twitter office to serve a notice to the company’s managing director after Patra’s tweets were classified as classified.

A Twitter spokesperson said that “we, like many in civil society in India and around the world, are concerned about the use of bullying tactics by police in response to enforcement of our global Terms of Service and the core elements of new IT regulations.” “

Duggal believes that Delhi Police did not go to Twitter to give a short summon.

He says, “The police had gone to give a message that the companies should tighten their gear and if they did not provide the information demanded from them, then action would be taken against them. The summons could have been sent by email as well. And during the work from home, the police would not be able to find any company. Why would she go to the two offices of K? So the message is very clear.”

Cheema says that the government is sending a large number of orders and political instructions to IT companies and many companies are opposing them saying that those orders either break the company’s policies or do not match with the government’s own instructions.

He says, “The government asked the Special Cell of Delhi Police to take up the issue of labeling of a politician’s tweet. If you look at the government’s own instructions in these rules passed in February, they really wanted to. That platforms use more automated technologies and label content more proactively. But it seems the government wanted them to do so unless it was related to a politician associated with them.”

According to news agency PTI, the IT Ministry has said that Twitter “wants to undermine India’s legal system through its action.”

At the same time, according to Duggal, the problem is that there is no check and balance in the IT Rules 2021.

He says, “So the possible misuse of it cannot be ruled out. There should be some control over the powers of the police too. By using these powers do you want to target political opponents or critics? ? These rules should not be misused, so it is important that there should be checks and balances in them.

They say that the law does not believe that these companies can compel their consumers not to publish any kind of content. “The law says you bring in rules, bring in a privacy policy, bring in a user agreement so you tell consumers what they can’t do. If companies implemented rules and notified people every six months that their Even after that, if someone violates the rule, then there will be no liability of the companies. If the companies comply with the norms of due diligence, then they get the security cover of statutory exemption from legal liability under section 79.

According to Duggal, the main thing is that the government has said that the service provider will also be responsible for dealing with fake news. He says, “As things emerge, we are moving in a direction where service providers can be compelled to act under certain circumstances. Now nothing is left in the hands of the service provider. Government agencies will ask for information, they will have to give it. If not, then they and their top management will face criminal prosecution. So this is a game changing rule. Till now companies have not realized these aspects.

According to Duggal, these rules apply not only to big service providers like Twitter and Facebook but also to 99.9 percent of Indian companies. “Indian companies have not woken up from their slumber. These rules apply to intermediaries. The definition of intermediaries in the IT Act is so vast that almost 99.9 per cent of companies can be considered as middlemen,” he says.

According to Duggal, if any company is using electronic data or computers or keeping third party data in its system, even if it is the data of its employees, then it becomes an intermediary or middleman. “Once you become a middleman, section 79 of the IT Act states that you will have to exercise due diligence while discharging your obligations.”

What is the situation in other countries?

Are there such rules in other countries of the world as well? Duggal says that the way these rules are being developed in India, the rules matching with them are not seen anywhere in the world at present.

He says, “According to the US model, the service provider is considered a pipe provider and the provider is not held responsible for what is flowing inside that pipe. So there is complete exemption from legal liability in the US. India said that We will give you statutory immunity if you comply with certain conditions. Those selected conditions are covered in these Terms. This means that if you do not comply with any provision of any of these terms, then there will be two kinds of consequences. The statutory exemption from the legal liability of companies under the IT Act will be gone and secondly, there will be criminal cases against the companies.

Duggal believes that without checks and balances, there is a huge potential for these rules to be misused and in the coming days, they can cause trouble for the companies. He says that “for the ecosystem to grow in a safe, sound and stable manner, it is necessary that there are some restrictions in these rules. Those restrictions will either have to be imposed by the government itself or the courts.”

According to Raman Cheema, the government seems to be very concerned that tech platforms are under more pressure to ban hate speech and other content on the internet and this could lead to banning some politicians in India. He says, “The removal of Donald Trump by the tech platform and the ban on other politicians promoting hate speech in the US has created a stir in India.”

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