New social media rules – an analysis

Synopsis: The government announced The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The experts have welcomed the step but there are some cautious provisions in the new social media rules.

Background of the new social media rules:

• The rise of social media resulted in enormous controlling power in the hands of big technology companies. The government took this step to regulate the misuse of power by them.
• A core framework to determine intermediary liability was ensured by Section 79 of the Information Technology (IT) Act. This was supplemented by operational rules and SC’s judgment in the Shreya Singhal V. Union of India case.
• However, the intermediaries were kept immune for the content that is transmitted and stored by them. In return, they had to comply with a set of conditions that were set by the government. 
• It is this set of conditions that got translated into Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The rules were jointly announced by the Minister for Information Technology and the Minister for Information and Broadcasting.

About the new social media rules:

• They contain fresh obligations for social media companies and platforms.
• The user should be given a notice before its content is taken down. This improves the accountability of social media platforms.
• The government can direct messaging platforms to tie the identity of the user with the message transmitted by him/her for strengthening traceability.
• An oversight mechanism is being created for digital news media portals as well as for online video streaming platforms. It will perform a similar role like what the Ministry of Information and broadcasting does for T.V regulation.
• The body conducting oversight will also be empowered with censorship and blocking powers as per Rule 13(4).

Read more – Social Media and OTT rules

Criticisms of new social media rules:

• Various aspects of rules were not put for public consultation especially those related to regulations of online news portals and video streaming platforms.
• The rules allow the government to enforce a traceability mechanism. This simply means a threat to the user’s privacy.  It will hamper the end-to-end encryption of platforms like WhatsApp. 
• As the new rules curtail free speech on these platforms, there will be a sense of fear among the users
• The IT Act doesn’t cover content authors and creators like news media, but rules have included them. This provides discretionary powers to the government. 
• The proposed oversight mechanism doesn’t have any legislative backing which is generally given to other regulators. For example, the Telecom Regulatory Authority of India Act provided powers to TRAI (Telecom Regulatory Authority of India). Under the rules, the regulation will be done by a body composed of bureaucrats. They might perform discretionary censorship.

Conclusion:

The proposed rules seem to enhance political control and enhance fear in the minds of users. They should have been formulated in a more deliberative way involving parliamentary processes. To protect citizen rights, India can frame a regulator like OFCOM in the UK. Anyway, the enactment of new social media rules is still a watershed moment that will transform the digital information ecology in India.