The Ministry of Electronics and Information Technology, Government of India has notified new rules under the Information Technology Act, 2000 (“IT Act”) for monitoring social media digital media platforms. The new rules, viz. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) inter alia aims to serve a dual-purpose: (1) increasing the accountability of the social media platforms (such as Facebook, Instagram, Twitter etc.) to prevent their misuse and abuse; and (2) empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution. The Intermediary Guidelines have been framed in exercise of powers under section 87(2) of the IT Act and supersede the previous Information Technology (Intermediary Guidelines) Rules, 2011.
The rationale behind the Intermediary Guidelines stems from a plethora of different orders and reports including the Calling Attention Motion on ‘Misuse of Social Media platforms and spreading of fake news’ admitted in the Rajya Sabha on July 26, 2018, the Hon’ble Supreme Court’s order dated December 11, 2018, which observed that the Government of India should frame necessary guidelines to eliminate child pornography, rape etc. for content hosting platforms and other applications; the Hon’ble Supreme Court order dated September 24, 2019, directing the Ministry of Electronics and Information Technology to appraise the timeline in respect of completing the process of notifying the new rules, and lastly, the report of the Ad-hoc committee of the Rajya Sabha dated February 3, 2020, relating to the alarming issue of pornography on social media and its effect on children and society as a whole.
The following are a few among the many key guidelines the Social media platforms are reluctant in adhering to :
A social media intermediary (i.e., an intermediary which primarily or solely enable online interaction between two or more users) is required to comply with certain additional due diligence measure, which inter alia include:
• appointing a chief compliance officer who will be responsible for ensuring compliance with the provisions of the IT Act and rules framed thereunder and will also be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by the intermediary where the officer fails to ensure that such intermediary observes due diligence while discharging its duties under the IT Act and rules framed thereunder.
• appointment of a nodal contact person for 24×7 coordination with law enforcement agencies and officers to ensure compliance with their orders or requisitions.
• publishing a compliance report every month mentioning the details of complaints received and action taken thereon, and the number of specific communication links or parts of information that the intermediary has removed or disabled access to in pursuance of any proactive monitoring conducted by using automated tools or any other relevant information, as may be specified below :
• A publisher of new and current affairs contents is required to adhere with the provision of the Code of Ethics, annexed with the Intermediary Guidelines. For the purposes of ensuring observance and adherence with the prescribed Code of Ethics by publishers and for addressing the grievances against the publishers, a three-tier grievance redressal structure has been prescribed, as below:
• Level I is the self-regulating mechanism which inter alia appoints a grievance officer who shall be responsible for the redressal of grievances received by him;
• Level II is the self-regulating body, i.e., there shall be one or more independent self-regulating bodies of publishers, which bodies shall inter alia be responsible to oversee and ensure the alignment and adherence with the Code of Ethics, address grievances that have not been resolved by the publishers within the fifteen days’ specified period etc.; and
• Level III is the oversight mechanism, i.e., the Ministry of Electronics and Information Technology shall coordinate and facilitate the adherence with the prescribed Code of Ethics by publishers and self-regulating bodies, develop an oversight mechanism for performing the prescribed functions which inter alia include publishing a charter for self-regulating bodies including Code of Practices for such bodies, establishing an Inter-Departmental Committee for hearing grievances, and issuing appropriate guidance and advisories to publishers etc.
The deadline to accept and follow these guidelines expired in February’21 and these platforms haven’t hesitated in saying that they are governed by the laws of the United States. Twitter has also responded by saying that it’s a platform of “Free Speech”. But the BJP government has responded brilliantly saying “Twitter needs to stop beating around the bush & comply with laws of the land. Lawmaking and policy formulations are the sole prerogatives of the sovereign and Twitter is just a social media platform & it has no locus in dictating what India’s legal policy framework should be,” Even though after that Twitter has not responded clearly to the sign regulations of the government of India. And today on the 5th of June the government of India has served the final notice to Twitter for compliance with the new IT rules.
The freedom of Speech statement by Twitter seems to be a joke, because of its bias towards a certain section propagating a definite ideology. Was it freedom of speech when the accounts praising the violence at Red fort on the Republic Day weren’t suspended but accounts justifying Capitol Hill violence was, is it freedom of speech when people abuse India on Twitter, is it freedom of speech when ISIS supporters spread their hatred on Twitter, is it freedom of speech when separatist claim Kashmir not to be an integral part of India? Twitter’s bias is clearly seen when one observes the suspension of various conservative accounts in the US and many rightist accounts in India. Freedom of speech cant be selective, it must be objective. Twitter seems not to be worried about free speech but selective propagation. Twitter seems to be openly political and showed it by permanently suspending Donal Trump’s account.
These big techs must be made to understand that their definition of freedom of expression and hate speech cannot be universally accepted as they are governed by their ethos and Culture of profit-making. They should be stopped to justify themselves to be the protectors of humanity. There are many examples where they sold data, motivated election campaigns. If regulations are not brought in,these big tech firms will determine the destiny of Nations, they will decide who would form government in a given nation. To save Democracy and to save our India these regulations must be brought in. If all the companies working in India follow Indian laws why should these tech giants be any different?
(Gautam Sharma is the State Secretary of Bharatiya Janata Yuva Morcha, Assam Pradesh)
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