The Ministry of Electronics in India released new IT laws on 25 February under the Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021 in an attempt to impose a tougher regulatory structure for social media and OTT such as Facebook, Twitter, WhatsApp, Netflix, and Amazon Prime.
The Union IT and Communications Minister Ravi Shankar Prasad had encouraged corporations to implement a "soft-touch oversight mechanism" and a "robust redressal of grievances". The platforms were given 90 days to take the necessary steps to affirm compliance with the new guidelines.
He also said that these new guidelines were mainly put in place to prevent the exploitation of social media platforms and streaming services, as well as to identify the first source of malicious material and to delete materials portraying nudity or modified images of women within 24 hours.
However, due to its massive potential to interfere with the user's right to privacy and freedom of expression, this action has drawn significant worry and criticism. For instance, only a month after the announcement, Stanford Internet Observatory scholar Riana Pfefferkorn stated, "The new traceability and filtering requirements may put an end to end-to-end encryption in India."
The guidelines require social media platforms to set up a grievance redressal mechanism and appoint a grievance officer, who must register a grievance within 24 hours and resolve it within 15 days. In the event of a complaint about a user's dignity, particularly that of a woman (exposed private parts, nudity or sexual act, impersonation, etc.), social media platforms will be required to ensure the removal of such contents within 24 hours of receiving the complaint.
Important social media intermediaries guidelines included the appointment of a chief compliance officer (Indian resident) who would ensure compliance with the acts and rules, a nodal contact person (Indian resident) for regular coordination with law enforcement officials, and a resident grievance officer to perform the grievance redressal procedure and prepare a monthly compliance report detailing how many grievances were submitted and whether or not they were resolved (If so, how?).
Social media platforms must also reveal the identity of the original sender of the mischievous message if asked to do so by a court or the government and they are also under an obligation to have a provision ensuring voluntary verification of users.
OTT platforms, on the other hand, must disclose information about where and how they publish content, as well as establish a grievance redress system and a self-regulatory body led by a retired Supreme Court or High Court judge.
Social media apps were protected as "intermediaries" under section 79 (1) of the IT Act and so they could not be held responsible for the actions of users. Part 7 of the new guidelines, however, states that in case of non-compliance by the intermediaries, the immunity will no longer apply and they will be liable under Indian law- "Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code."
In terms of OTT platforms, while Netflix has demonstrated compliance with the new intermediary guidelines, the other companies have yet to do so. To date, none of the social media platforms, including Facebook, Twitter, and WhatsApp, have complied with the new rule.
On condition of anonymity, a government official told a leading Indian newspaper, "So far, none of the prominent significant social media intermediaries have sent the ministry any intimation of such appointments. It is not necessary that they inform the ministry, they can even furnish the details on the website. Either way, they have to comply."
However, on 25 May, WhatsApp filed a case in the Delhi High Court against the Indian government, requesting that the new IT rules be blocked. A WhatsApp spokesperson told a leading platform that "Requiring messaging apps to 'trace' chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people's right to privacy."
"We have consistently joined civil society and experts around the world in opposing requirements that would violate the privacy of our users. In the meantime, we will also continue to engage with the Government of India on practical solutions aimed at keeping people safe, including responding to valid legal requests for the information available to us," he added.
WhatsApp also expressed fear that "the traceability rules are ineffective and highly susceptible to abuse."
Facebook has noted that "We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people's ability to freely and safely express themselves on our platform".
Twitter, on the other hand, which has been most widely criticised by the supporters of the Indian government for failing to remove posts by the critics, has refused to comment on this issue. It's worth noting that India Police recently went to Twitter's India offices to deliver a notice to the company's country managing director after the social media giant labeled a BJP spokesman's tweet as "manipulated media."
These new rules appear to violate a user's right to privacy as well as their freedom of expression, as no one will be able to freely express themselves if the government conducts such widespread surveillance.
Given the current Indian government's history of atrocities against critics, it is reasonable to believe that this new step is simply another attempt by them to bury the voices that they are afraid of hearing.
This recent development is no longer about social media/OTT platforms vs. the Indian government, but rather about saving the last ounce of democracy and people's freedom that is left in their land as "Man's capacity for justice makes democracy possible but man's inclination to injustice makes democracy necessary - Reinhold Niebuhr."