Treading the tightrope

The replacement of Information Technology (Intermediaries Guidelines) Rules, 2011 by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has caused much outcry in public circles and media outlets. The new rules are impregnated in the Information Technology Act, 2000 — that primarily deals with electronic transactions and cybercrime. The resentment against the legislation has grown to the extent that certain digital news entities have filed legal petitions against the new rule.

The rules are designed in the way that they cover a major part of the vast internet expanse in the country. Leaving behind specifics for a while, it won't be completely wrong to generalize that these rules tend to extend the same legal cover to internet-based platforms that look after the traditional media.

The conundrum of internet regulations has left nations the world over puzzled. Leading nations in the world, including India, have been long battling the idea of striking a balance between free speech and internet regulation—both equally important. Global fraternity can see no completely agreeable solution. If it is a problem of such magnitude, and India has found a somewhat quick solution to it, then this curious case is subject to retrospection by all. With all its pros and cons, the new IT rules will redefine the internet ecosystem as well as the experience of internet users in a radical way — for good or for bad.

The route of legislation

It is not always the end but also the means which have great significance. The ground for the newly embedded Information Technology Rules, 2021 was laid in November last year when the Government of India (Allocation of Business) Rules, 1961 was amended to include a new subhead 'Digital/Online Media' and two entries relating to OTT content, and online news and current affairs media, under the head of Ministry of Information and Broadcasting. The amendment gave the ministry the power to regulate policies around the listed entries.

The announcement of IT Rules, 2021 on February 25 was fructification of the same amendment. The legislation directly affects most of the citizens of our nation. At the same time, it is connected to global platforms that operate in almost every part of the world. While regulation of social and digital media was long-awaited, the route through which it is coming is unsettling. The best possible route for such legislation would have been through Parliament, its committees, the public scrutiny and the assent of the President. It ought to be packed with credibility and more permanence, less conflicts.

Since their promulgation, the rules are facing widespread criticism in media and political circles. It is important to see what consultation mechanism the government comes with to allay the concerns of those feeling left out from the rules. If the consultation process is delayed or ignored, it will be at larger social cost.

This seems absurd that the government aims to put an umbrella regulation to three widely different types of internet-based platforms — the social media, online curated content and digital news media. Further, the source of regulation is neither a judicial order nor a law that has passed the test of parliamentary proceedings and scrutiny of parliamentary committees. The wide ranging regulations rather come through impregnation of bits and pieces of rules within an existing law — Information Technology Act, 2000. Each of the three entities is vast in its domain and has its own growing relevance, characteristic features and the purpose it serves. There was certainly more scope for consultations, deliberations, public scrutiny and detailed planning to lay the foundation of a firm regulatory framework which would have defined the communications aspect of society in a greater way.

Privacy compromised?

Part II of the new rules introduces due diligence for the intermediaries defined as entities that store and transmit data on behalf of other people. Social media is one of those intermediaries. Social media intermediaries will have to show diligence to inform its users about the company's rules and regulations and privacy policy besides removing unlawful content from their platform within 36 hours.

Further, there are provisions related to 'significant social media intermediaries'— those having passed a threshold number of registered users — who share additional diligence to appoint a chief compliance officer and grievance officer alongside publishing monthly compliance reports. However, the provision that has stoked greater controversy is one which binds social media companies to reveal the identity of originator of a particular message under specified conditions. With this, the much-touted and preferred system of end-to-end encryption gets reduced to a myth. User experience of services like WhatsApp will now be based on suspicion of being watched regularly with hidden eyes. Many see it as an encroachment of personal privacy, a concept that has become so central to our lives.

Globally, the role of giant social media companies is shifting towards that of a publisher or editor. Given the sheer influence these companies wield, efforts towards holding them accountable for the content they host on their platform have intensified, even in the bastions of free speech like the USA. When it comes to regulating social media, three specific aspects must be borne in mind—socio-economic and political fabric of the society, the investment that the government must usher in to make regulations impactful and the market forces that drive the growth of social media biggies. Unless and until reforms are based on these pedestals, they are likely to fall. Arbitrary reforms will lead to more chaos and conflict, rather than providing sustainable solutions.

New precedent

Over the past decade, digital news media has done a commendable job in not just standing against those in power whenever necessary, but also by preserving the essence of journalism through sending ripples to the mainstream media. For whatever reasons, the new IT rules have compelled some of them to move to courts against the legislation they see as threatening to their functioning and existence. The Wire and News Minute have moved the court with the argument that incorporation of rules and code of ethics regarding digital news in the IT Act, 2000 is a contravention of the Act itself as the underlying motive of the Act is not connected with regulation of news media.

Online news media have been put under the same bracket with OTT content providers under the part III of the IT Rules 2021. The bone of contention here is that the ultimate authority to regulate digital news media rests with the government, though it is a three-tier system. The first tier consists of the appointment of a grievance officer by the registered online company, which will decide on public grievances within 15 days of receiving the complaint. The aggrieved party, if not satisfied, can go to the second tier — self-regulatory body at the industry association level. The six-member body will be headed by a retired High Court or Supreme Court judge or any independent person of eminence. The third tier, an inter-departmental committee, will be chaired by a joint secretary-level officer and hear the cases that have already been heard by a judge-led committee.

Regulatory provisions extend to the point of deletion, modification and blocking of content by an "authorized officer". This move is unprecedented in modern Indian history and has rightly become the hotbed of criticism. The Editors Guild of India has gone on to say that these rules "fundamentally alter how publishers of news operate over the internet and have the potential to seriously undermine media freedom in India".

Feasibility of the rules

What does it take to curb the ills of social and digital media? If it were just a set of rules made in any manner, the world would not have been grappling with it since decades. Promulgation of laws or rules in view to regulating social media has to be coupled with social and infrastructural investment. Then only can the legislation survive, flourish and serve its purpose.

The IT Rules, 2021 demands the appointment of grievance officers at the company level and the establishment of a self-regulatory body at the association level. The onus of establishing such posts rests with the digital entities. This will lead to additional cost for online digital news media. In addition, the rules leave such a big loophole when it comes to misuse of the rules. It won't be wrong to say that journalism is a profession that earns adversaries. The rules make online news portals so vulnerable that individuals and organizations can drag a small news portal into long complicated legal battles involving financial costs, if he/she wishes so.

The prospect of revenue for small online news portals is very limited. These may not afford to have proposed appointments for a long time. In that case they will simply be weeded out in competition with larger players — a denial of the idea of internet for all.

Global perspective

The world largely remains divided in two poles on the matters of social media and digital regulations. The US-led block is the staunch proponent of free speech. The US approach has lent credence to the tech giants operating in Silicon Valley by not holding them accountable for the content posted on their platform. The European block on the contrary, believes the tech companies have grown massively and if not controlled in time, could have an adverse impact on polity, economy and society of nations.

Germany has come down heavily on social media companies with its Network Enforcement Act of January 1, 2018. It has imposed a heavy fine of up to 44 million pound if social media companies failed to remove illegal hate speech within 24 hours. Interestingly, social media companies including Facebook and Twitter quickly ramped up content moderation and flagging activities. Somewhere at the background of this legislation is the shadow of holocaust history and hate culture the country faced in middle of the past century. European Union also came with a proposal of Digital Security Act and Digital Markets Act. The DSA places the obligation on social media companies to disclose data of their algorithm, rationale behind removal of contents and targeting of advertisements to regulators, failing which the companies could face a fine amounting to six per cent of their global turnover. It is true that there could not be one size fit all solutions for all countries, but India can still have certain takeaways from global examples and localize it suit her needs.

The Indian history, right through the British era, has shown that at no point the grip of regulations loosened and at no point the free speech was completely subdued. The balance remained and the rest other things got weeded out. The diverse Indian society is structured in a way that it bounces back against regulations. The regulation on digital and social media has to come out of widespread consultation otherwise the chance of it going void increases, leading to loss of resources and time.

Conclusion

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have a few positives to offer. The recognition and registration of online entities, rebuttal of fake news, removal of hate content, obscene and pornographic materials are steps in good direction. Its major fallouts have been its implications on privacy and free speech. There is an urgent need to carry out extensive consultation exercises and take some cues from nations that are leading social media regulations. Though, any such attempt should be made by keeping India's socio-economic and historical landscape in consideration.

Views expressed are personal