New IT Rules for Social Media and its challenges – Explained, Pointwise

Introduction

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 came into force in India. The new IT rules have been framed to address the Social Media, Digital Media, and OTT platforms in a specific manner. The government has released the new IT rules, 2021 in February. The government provided 3 months’ time for Social media platforms to adhere to the rules. That 3-month time period ended on 25th May and the New IT Rules for Social Media came into effect from May 26th.

Though the rules mention social media platforms as an intermediary, some provisions treat them at par with publishers of content. Such as prohibiting unlawful content on the platform, appointing a Chief Compliance Officer, etc. This attracted large criticism from social media companies. Most of the social media giants did not comply with the rules. Further, WhatsApp even filed a case in Delhi High Court contesting the traceability provision.

New IT Rules 2021 for Social Media

1. Social media companies are prohibited from hosting or publishing any unlawful information. This information is “in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries, etc”.
2. If such information is hosted or published the government can take down such information within 24 hours. The user will be given a notice before his/her content is taken down.
3. Traceability mechanism: This provision requires the social media platforms to compulsorily identify the first originator of the information in India, upon government or court order.
4. The IT rules 2021 call for social media companies to publish a monthly compliance report.
5. Social media platforms are classified into two categories
   1. Social media intermediaries – Platforms that have a limited user base.
   2. Significant social media intermediaries – These are the platforms with a large user base.
6. The significant social media intermediaries have to follow few additional measures like:
   • These platforms should have a physical contact address in India.
   • Appointing a Chief Compliance Officer, Nodal Contact Person, and a Resident Grievance Officer in India. All of them should be Indian Residents.
     • Nodal Contact Person will do 24×7 coordination with law enforcement agencies.
     • The Resident Grievance Officer must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt.

Issues surrounding the New IT Rules 2021 for Social Media

1. The issues associated with traceability provision in rules: The rules require tracing the information back to the source. This is against some social media policies. For example, WhatsApp claiming their policy as end-to-end encrypted cannot accept new IT rules. If they accept, then their services cannot remain end-to-end encrypted.
   • Against Doctrine of Proportionality: It is a principle where courts examine processes of the administration for reaching or recalling a decision. Proportionality means that the action should not be more drastic than it ought to be for obtaining the desired result.
     • Under this doctrine, there is a question on whether the executive could achieve the goal (i.e. elimination of the threat to security and sovereignty of the nation by social media) by adopting drastic measures such as tracing the messages.
2. Enhancing political control: Implementation of New IT Rules will increase political control of social media companies and posts in social media. This is because the New IT Rules for social media do not have legal backing. For example, For example, the Telecom Regulatory Authority of India Act provides powers to TRAI (Telecom Regulatory Authority of India). But the new IT rules are framed by bureaucrats there might be wider use of discretionary censorship.
3. Placing barriers on the marketplace: The new rules increase operational costs for social media companies. As they require to have Indian resident nodal officers, compliance officers, and physical offices in India. This will increase their operational costs significantly. Also, it will hamper the progress of multinational corporations and start-up intermediary enterprises in India.
4. Revoke protection under Section 79 of IT Act: Non-compliance with new rules will take away the protection granted to social media intermediaries under Section 79 of the IT Act.
   • This section mentions that any intermediary shall not be held legally or otherwise liable for any third-party information, data, or communication link made available or hosted on its platform.

View of Social media companies

WhatsApp filed a case against the enforcement of New IT rules. During that, WhatsApp contested the following criticisms with the IT Act.

1. Lack of stakeholder consultation: The rules were notified in a short time without much public and stakeholder consultation. Social media companies like Facebook mention that they are ready to comply with the rules. But prior to that, they need to engage with the Government on certain genuine concerns with the rules. But the government provided no time for that.
2. Legislative challenges: Neither any Act (including Information Technology Act) nor any other law requires a social media intermediary to reveal the identity of the first originator of a message. Further, the IT Act does not regulate digital media. But, the new IT Rules for social media being subordinate to the IT Act overshoots the original intent and boundaries of the parent Act (IT Act).
3. Altering the fundamental operation of Social media companies: Under Section 79 (of IT Act) certain conditions attached to maintain the immunity of intermediaries. But the new IT Rules not only alter the provision of intermediary but also alter the entire function of a Social media company as a Publisher. This is against the provisions of the IT Act.
4. Against Right to privacy: The new rules curtail free speech on digital platforms. The Supreme court in its famous Puttuswamy case judgment mentioned that any law that impacts the fundamental right is void. Further, this iteration was also mentioned in the Anuradha Bhasin case on Internet freedom. Implementing the new IT Rules for social media will violate the judgment and its provisions.

Government argument in support of New IT rules for social media

1. Social media companies are not legally intermediaries: Legally the social media companies are not considered as an intermediary. Under section 2W of the IT Act, the definition of intermediary does not include Social media companies. This section mentions Intermediaries like internet service providers, online auction sites, online marketplaces, etc. But under the rules, the government mentioned that the social media companies will be treated as an intermediary if they adhere to the new IT rules.
2. Adherence to Indian laws and regulation: Social media platforms use curated content for money-making and not take any editorial regulation. So far these social media platforms not followed specific Indian guidelines regarding the content on their platforms. The new IT rules aimed to change that perception. From now on the content in social media platforms will follow Indian publishing rules and regulations. Just like the print media is following during their publication.
3. Benefits end-user: The government underlines that these new IT rules on social media will benefits society at large. Such as,
   • Secure right to privacy: After the rules come into effect, users’ personal photographs, personal data will remain safe with the user.
   • Safety for vulnerable sections: Children and women will now be safe and secure in Social media. The chances of cyber-bullying, exposure to obscene content, and harassment will reduce on social media platforms.
   • Promote the integrity of the nation: If the rules adhered to strictly, then any posts promoting a particular race, sex, caste, religion will reduce in time. This will promote India as a multi-cultural society.
   • Security of state: The social media companies will have to remove any posts that promote radicalism, online terrorism, violence over social media. Thus, it will weaken India’s internal and external threats.

Suggestions

1. The focus should be on strengthening citizen’s rights by learning from successful global examples like OFCOM (OFCOM is a communication regulator in the UK).
2. Providing more time: Five industry bodies, including the CII, FICCI, and the U.S.-India Business Council have sought an extension of 6-12 months for compliance. The government can provide time relaxation for compliance. In the meantime, the government can bring together both the private and industry experts to address genuine concerns.
3. India did not have General Data Protection Regulation or GDPR like the EU: The government instead of issuing IT rules can enact a data protection law in line with the GDPR. This will address the majority of the issues with the social media platform. Further, it will move a step ahead and force social media platforms to store data within India itself.

Conclusion

The New IT rules for social media alter the entire social media platform’s function, responsibility, compliance, and user rights. But to get the desired outcome the rules alone are not sufficient. It requires legislative backing to regulate social media companies in India. The government can enact a draft bill on the regulation of digital platforms after the due consideration of the upcoming judgment of the Delhi High Court in the WhatsApp case. This will become a watershed moment that will transform the digital ecosystem in India.