(republished with permission)
By Pramod Ranjan
(Note: The notification of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 have far-reaching implications for freedom of expression on the Internet and will, in the name of regulation by a three-tier mechanism overseen by government officials, restrict and censor digital news organisations, social media platforms and OTT streaming services.
Two petitions have been filed against it. A petition before the Delhi High Court, by the ‘Foundation for Independent Journalism'(a non-profit company which owns ‘The Wire’), Founder and Editor-in-Chief of ‘The News Minute’ Dhanya Rajendran and M K Venu, founding editor of The Wire, argued that the rules could not be made applicable to news media. Another petition before the Kerala High Court, filed by Live Law News Media Pvt Ltd, the publisher of law reports and legal literature, challenged the ‘self-regulatory’ mechanism that needed registration and approval by the ministry of Information and Broadcasting).
In the last week of February 2021, what was widely perceived as Government of India’s attempt to rein in social media and OTT platforms, was the top news in both the digital as well as the conventional media The government’s diktat is titled “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.” (Gazette of India, 2021) It was claimed that the Indian government had managed to do what even the powerful European nations could not – bringing the social media czars to their knees.
The rules notified by the government on 25 February 2021 treat the companies running social media and OTT platforms as ‘intermediaries’ and express the hope that they would self-regulate. Announcing the new measures, Ravishankar Prasad, Minister for Information Technology, told a press conference that, “We have not made any new law. We have just made new rules under the existing IT Act. We are confident that the intermediary platforms would follow these rules. (Our) focus is on self-regulation.” (Youtube Video, Press Information Bureau, Government of India)
The fact is that these rules are meant less for controlling the intermediary platforms and more for terrorizing the people into submission and silencing those who raise fundamental socio-cultural and political issues. The new rules would substantially erode the freedom of expression, to whatever extent (Kamdar, 2018) it is available, to the people of this country.
Some provisions in these rules may lend strength to the supporters of the current government, the vendors of hate and religious fundamentalists.
What do the rules say?
A gist of the provisions in the new rules is as under:
-The social media platforms would be obliged to share with the government the identity of the person who first posted an allegedly objectionable or mischievous message i.e. the original writer of the message would have to be named so that action can be taken against him or her. And this will include those who post messages hurtful to religious feelings and critical of government policies in a way that threatens the unity, integrity, defence and sovereignty of the country. Clearly, posts calling for participation in or support to any movement or protest can also be included in this category.
-If anyone posts vulgar content, his identity will also have to be shared with the government. This will include all kinds of explicit sexual content, child pornography and obscenity. This provision would create problems for people who have sexual orientations other than ‘normal’ and use the Internet to search for like-minded persons without revealing their identity.
-If the intermediary company removes any account or deletes any content, it would have to inform the person concerned as to why it was doing so. This provision seems to have been made in the wake of social media platforms suspending the accounts of former American President Donald Trump. In India, too, these companies had suspended the accounts of some right-leaning activists after they posted communal and inflammatory content. Now, the government would be able to intervene indirectly in such cases.
-It will be mandatory for social media platforms to display as ‘verified’, the accounts of such users who wish to verify their identity. These platforms already put a ‘blue tick’ against accounts which are verified. However, a blue tick is not given merely because your identity has been verified. It is normally given only to celebrities and there too, discrimination on ideological grounds is common. Also, these companies do not give blue ticks to persons whose posts they deem not in keeping with their rules. It is true that there are many issues in this process. But it is also true that because of it ‘ideological rioters’ and other reactionaries do not manage to get blue ticks. Scores of overt and covert trolls of the current dispensation haven’t managed to get blue ticks despite having lakhs of followers. The new rules would establish their identity and multiply their influence. In fact, those helming this government have been trying for long to create a sort of intellectual smokescreen so as to lend respectability to their own ‘intellectual’ class, which is nothing but a motley group of superstitious, anti-knowledge conservatives with fanciful ideas about ancient India and its glory.
-Those posting so-called objectionable content on social media would be liable for a jail term which may extend up to five years. This provision already exists in the IT Act and the government has only reiterated it. No action will be taken against social media platforms under these rules. Answering questions at the press conference, Minister Ravishankar Prasad made vague and misleading statements on this issue. He repeatedly said that under the new rules, IT Act would be applicable to social media platforms and their liability would be fixed under the provisions of the Act. The fact, however, is that Section 79 of the IT Act 2000 provides for ‘safe harbour’ for IT companies i.e. they cannot be prosecuted for hosting the content posted by a user. The new rules say that ‘safe harbour’ protection won’t be available to them only if they refuse to follow government orders asking them to delete a particular content or if they store the deleted content in their servers or in any other form. Thus, even under the new rules the liability of these platforms is limited to obeying the orders of the government (and destroying forever any content which the government dislikes). Even under the new rules, they are not required to adhere to the spirit of the Indian Constitution and the country’s penal codes and they would not be held guilty on that count. In short, social media platforms have nothing to worry from the new rules. They would not be held responsible for the widespread dissemination of any post.
The new rules do not even refer to protecting the privacy of the people at a time when privacy has become a global issue. They also do not make the intermediary platforms liable for making payments for using the content generated by local media institutions.
The government is clear as to what it wants and Minister Ravishankar Prasad made no attempt to hide it. Addressing a press conference while releasing the new rules he said that the government welcomes the Tech Giants to India. They can do business here and earn money. What was implied was that they are free to sell the personal data of Indians, use content generated by small and big media institutions to make profits for themselves, cheat the writers and journalists by using the products of their hard work and talent without paying a pie to them and ensure that the younger generation becomes slave to the mobiles and the laptops. They can do all this and more. But the only condition is that they should unquestioningly obey the diktats of the government. If the government asks them to take down a post, they should do it without any delay; if the government believes that certain food habits are detrimental to the interests of the nation, those taking about them should be penalized; if the government decides to sell the country to private interests, anyone opposing it should be treated as an enemy of the nation and his or her posts should be immediately deleted.
In the second week of February, the government had urged the people to become Cyber Crime Volunteers a euphemism for cyber spies. These rules are a further step in that direction. The government would choose its spies from among the people who will inform it about the trouble-creators and the government, in turn, would ask intermediary platforms to take down the content posted by these trouble-creators and punish them. Besides ‘cyber spies’ these rules limit the freedom of expression of the people in many other ways.
No wonder, Facebook and Twitter have welcomed these rules (Business Standard, 2021) and have said that they have been demanding for long that the government should issue guidelines for them and that they were ready to follow them.
- The Gazette of India, 25th February 2021 G.S.R. 139(E): The Information Technology (Intermediary Guidelines and Digital Media Ethics Code)Rules, 2021.https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary
- Press Information Bureau, Government of India. (2021, February 25). Union Ministers Prakash Javadekar and Ravi Shankar Prasad address a press conference [Video]. YouTube. https://www.youtube.com/watch?v=H0eqWuj84-0&feature=youtu.be
- Kamdar, M. (2018, April 23). Do Indians have freedom of speech? Retrieved March 03, 2021, from https://www.pacificcouncil.org/newsroom/do-indians-have-freedom-speech
- THE INFORMATION TECHNOLOGY ACT, 2000, Section 79(1), Government of India
- Draft rules: Social media cos welcome regulations that address challenges. (2021, February 25). Retrieved March 03, 2021, from https://www.business-standard.com/article/current-affairs/draft-rules-social-media-cos-welcome-regulations-that-address-challenges-121022501575_1.html
“This research received no specific grant from any funding agency, commercial or not-for-profit sectors.”
Conflict of interest
(Pramod Ranjan is Assistant Professor at the Rabindranath Tagore School of Languages and Cultural Studies, Assam University, Silchar, Assam and author of Media Mein Hissendari (Representation of Bahujans in media), Sahityetihas Ka Bahujan Paksha (History of Hindi literature: The Bahujan dimension), Bahujan Sahitya Ki Prastavna (The Case for Bahujan Literature). Email: firstname.lastname@example.org)