Read on to find out!
Since a few days, social media and a few news agencies are abuzz with the headline that Facebook and Twitter may be banned in India. This headline gained greater prominence as the sun set on May 25th yesterday. May 25th, 2021 was set as the deadline by the Government of India for the social media giants to comply with refreshed IT rules that aim for stricter compliance that shall come into force starting today, that is, May 26th, 2021. Barring Koo, the homegrown microblogging app, no other social media platform currently complies with the new rules.
Under the new IT rules, the government has asked these social media platforms to hire a nodal officer, who will coordinate with law enforcement agencies round the clock, whenever the government requires. The social media companies have also been asked to hire a grievance redressal officer. The officer, the government said, will help social media users with their grievances. Under the new IT rules, the government has asked social media companies such as WhatsApp to ensure that they can trace a message to the original sender. In other words, this simply means breaking the end-to-end encryption on messages, which is extremely challenging for messaging tools like WhatsApp. Over the past few months, WhatsApp has been under tremendous pressure due to it’s new privacy policy, which came into effect on May 15, 2021.
Appointment of a grievance officer would be a key requirement from day-one of rules coming into effect, given the importance of public interface for complaints, and need for an acknowledgement system for requests, suggest officials. This is true as most of us do voice our grievances on these platforms and the State machinery does respond too but there is no acknowledgement system as such for the same.
The government had set 50 lakh registered users as the threshold for defining 'significant social media intermediary', meaning that large players like Twitter, Facebook and Google would have to comply with additional norms. Announcing the guidelines in February, it had said the new rules take effect immediately, while significant social media providers (based on number of users) will get three months before they need to start complying. This 3 month time period expired yesterday. Significant social media companies will also have to publish a monthly compliance report disclosing details of complaints received and action taken, as also details of contents removed proactively. They will also be required to have a physical contact address in India published on its website or mobile app, or both.
If any of these social media platforms fail to accept these guidelines, they risk losing status as social media platforms and protections as intermediaries. To better understand this, we need to understand what an intermediary is. The term “intermediary” has been defined under the Information Technology Act, 2002 (“IT Act”) with respect to any particular electronic message and means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message. This list is non-exhaustive and includes Internet Service Providers (“ISPs”) as well as any website that provides user-generated content. Thus, intermediary liability, which is based on the legal principle of vicarious liability, means that the service providers shall be held accountable for any illegal act of the user on their platform.
Under the IT Act, 2000, initially, only network service providers were protected “for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.” Thus, the original IT Act provided little or no safe harbour protection to intermediaries.
The IT Act was amended in 2008 to include a safe harbour regime under Section 79 of the IT Act and to amend the definition of intermediaries (as it reads presently). The amended Section 79 of the IT Act provides safe harbour for online intermediaries from “all unlawful acts” rather than only offence or contravention and incorporates the requirement for due diligence for claiming safe harbour. It is an exemption provision which provides conditional immunity to the intermediaries as long as they prescribe to the provisions/conditions of the section. The conditions to be met for this immunity are enumerated under the Act.
This immunity is what stands at stake in the event Facebook and Twitter do not comply with these revised rules. Due to the intermediary status, they are exempted from liabilities for any third-party information and data hosted on their platforms. If they do not have immunity, the State can prosecute them for the content shared on their platforms. These rules were announced in February, 2021. Facebook did release a statement stating that it seeks to comply with these rules after ironing out a few issues and concerns. However, no such statement has been made by Twitter.
Therefore, there is no ban on these apps. Not yet. With the rules coming into effect today, the platforms can be prosecuted making not much difference to the end users. The concerns floating around are with respect to Freedom of Speech and Right to Privacy. What is pertinent to note that our views and opinions are shaped on which side of the ideological debate are we on. When one states that these rules attack our freedom of expression, especially the rule that forces the platforms to remove content flagged by the state within 36 hours, the response can be that Article 19(1)(a) of the Constitution of India which guarantees freedom of speech and expression is not an absolute right; it is reasonably restricted by Article 19(2). If the question of Right to Privacy is raised, which is guaranteed under Article 21 of the Constitution of India after a series of judicial pronouncements, the response can be that the State has greater responsibility to act against actors that work against law, order and peace in the society.
There is no right answer. Legal issues, in modern India, become ethical, moral and religious issues. Can it be otherwise? No! Law reflects the opinion of the society as per certain schools of thought. What we must do is cast aside our personal bias and look at the issue at hand objectively. There should be a fine balance between freedoms and responsibilities. As a libertarian would say," Is it really for the state to decide what can be speech and what cannot?" Let us ponder over that.