Issues in new social media rules
Fear of tracing private communications and using them against users can have a chilling effect on fundamental freedoms
The Union government has published detailed guidelines for digital media and OTT (Over the Top) platforms. Though social media is now among the preferred information sharing pedestals, mainly on glaring societal issues, there is an undeniable risk of misuse attached.
While Facebook and Google have agreed to comply with the new rules, some intermediaries are not on board. BJP’s spokespersons even declared this as a tussle between the ‘law of the land’ and social media platforms’ own regulations. WhatsApp has moved the Delhi High Court on these rules. The Centre has warned that these giants might lose their immunity as intermediaries which make them responsible for any unlawful content as the person posting it under the IPC.
The New Rules
As against the previous rules made in 2011, the new rules focus on the concept of “due diligence”. It specifically directs the intermediaries to publish all the rules and regulations, privacy policies and user agreements for its users. The Act also directs the intermediaries to keep notifying the users regarding privacy policy and user guidelines and to constantly educate and remind them of their activities.
The Act mentions identification of the first information originator through necessary order of the court or a competent authority. The government intends to curb the spread of false and fake information and use it as a tool that makes the investigation process easy by tracing the first information originator.
A wide range of content, which isn’t classified, is available to users on the OTT platforms. The guidelines lay forth categories by which the content has to be classified. In addition, the concept of parental locks is also introduced. Above all, the new standards equip intermediaries to deal with content complaints. A three-tier grievance remedial system is proposed: the first level would be publishers’ self-regulation, the second is self-regulation by the publishers’ self-regulating bodies and the third level is a Central government oversight system.
In this digital era, neither the right to speech nor the right to privacy is absolute — everything comes with a permissible set of restrictions for protecting the rights of others.
The Problem
These rules have bypassed the legislative route. They were made in exercise of the powers conferred under Section 87 of the IT Act, 2000.
However, to regulate these social media giants, the government needs to be more diligent with the rules and not just make changes through subordinate legislation. It is unfortunate that when millions of stakeholders are affected by these rules, only 171 comments and 80 counter-comments were received when the MEITY prepared the draft rules and invited comments/objections.
The fear of tracing private communications and using them against users has a chilling effect on freedom of speech and expression. Moreover, the infringement of fundamental rights must “be through the least restrictive alternatives” as held in Kerala State Beverages (M&M) Corp Ltd v. PP Suresh, (2019) 9 SCC 710. While identifying the first originator, the privacy of lawful citizens might also be at risk.
Section 79 allows the Central government only to prescribe the “due diligence” that intermediaries must observe. Compelling an intermediary like WhatsApp to fundamentally alter its platform and to identify the first originator of information might fall outside “due diligence”. Moreover, under Section 3(g), intermediaries are required to store records for a longer period for investigation purposes, even the information of those users who have cancelled their registration from the platform has to be stored for 180 days. But this might be against the KS Puttaswami Judgment (2017) 10 SCC 1, which emphasised the right to be forgotten.
Section 4(4) mentions that significant social media intermediaries shall deploy automated tools to identify information that depicts rape, child sexual abuse or conduct, whether explicit or implicit. Such tools lack accountability and transparency and also suffer from accuracy problems, which can impact the freedom of expression.
Upon receiving a court order or being notified by the government or its agency, the intermediary should take down the content within 36 hours. The recent instances where the notices were sent to social media intermediaries on objectionable or politically-coloured content are the worry. Moreover, in Section 1(b), expressions that can have wide interpretation are used which enable the government to jeopardise freedom of speech and expression as per its convenience.
Section 4(7) talks about voluntary verification of accounts by users through using any appropriate mechanism. While no one can deny the importance of verifying accounts, making it voluntary and also verifying the accounts through an appropriate mechanism, which is not defined, make the process arbitrary. Further, even though the information received for verification shall not be used for any other purpose unless there is expressly consent, the threat of data breach is real, and with such poor data protection laws, it is easy to run away with the liability. In fact, the data protection Bill is yet to be enacted.
Grievance Redressal
The Act regulates the OTT platform by setting up a three-tier grievance redressal mechanism — Section 12(4) and 14(5) involving a self-regulating body(first and second tiers) and Committee (third tier) to warn, censure, admonish or reprimand the publisher. Moreover, the Ministry of Information and Broadcasting retains the power to refer any complaints directly to the third tier, thereby placing the ball in the executive’s court to adjudicate.
Technology, specifically social media, has undoubtedly transformed lives. Since the “Right to Freedom of Speech and expression” is the most powerful fundamental right granted by our Constitution, it is critically important that there are balanced and well-codified laws that protect this right of citizens.
(The authors are fourth year Law Students at Osmania University)
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