IT Intermediary Rules Endanger The Law Of The Land

IT Intermediary Rules Endanger The Law Of The Land - Whatsapp

As the social media compliance deadline came closer, a sense of panic emerged among the users of social media. A few accepted the fate of the tech giants, while others were awake till midnight, actively talking about the ban, that has not yet been placed. Wednesday morning saw a series of atypical events, from WhatsApp, suing the government, to Twitter’s unusual silence on the matter. It all started three months back, in February 2021.

What Are The Guidelines?

On February 25, the union minister for the Ministry of Electronics and Information Technology (MeITY) issued a new set of guidelines for social media intermediaries and Over-The-Top (OTT) media services. Praising the role of social media in empowering the voice of the ordinary, the ministry instructed them to have a “soft-touch oversight mechanism and robust redressal of grievances”. The IT ministry maintained that the OTT platforms would have to classify their content into five categories. Based on the age group these five categories will be called – U (Universal), U/A 7+ (years), U/A 13+, U/A 16+, and A (Adult).

Other guidelines specified to social media firms included ensuring online safety and dignity, especially of women users. To encourage compliance with the issued guidelines, social media giants were instructed to categorize themselves into either of two categories. Platforms with over 50 lakh users were required to comply with additional due diligence. They were asked to appoint a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer.

Additionally, tech giants were required to publish a monthly compliance report mentioning the details of complaints received and action taken. The guidelines demanded the identification of the first originator of the information to the platforms, primarily those providing messaging services. It was made mandatory for “prevention, detection, investigation, prosecution or punishment of an offense related to sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order or of incitement to an offense.”

The norms have been subject to popular skeptics. Irrespective of their downside, however, the guidelines have positive reformist aspects. They instruct intermediaries to “remove contents that expose the private areas of individuals.” It prohibits social media from allowing content that showcases individuals in full or partial nudity. Additionally, these guidelines make social media intermediaries accountable for the content circulated on it. They allow users to explain their actions and what they have posted. While the norms seek media intermediaries to appoint a grievance redressal mechanism, this does not guarantee whether they would be able to investigate individual grievances.

WhatsApp Vs The Government Of India

Besides the advantages, the guidelines breach WhatsApp’s privacy policy. If implemented, WhatsApp will be under obligation to trace the original sender of the message, breaking their end-to-end encryption pledge. The messaging app filed a lawsuit in Delhi High Court against the new IT guidelines over the “traceability” of the message. Advocating the right to privacy, WhatsApp’s spokesperson said, “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,” added the source from WhatsApp.

Responding to the allegation, the Ministry of Electronics and IT remarked that, “WhatsApp’s challenge, at the very last moment, and despite having sufficient time and opportunity available during the consultation process and after the rules were enacted, to the Intermediary Guidelines is an unfortunate attempt to prevent the same from coming into effect.” The ministry questioned the privacy policy of the film released in February, saying that “… it will share the data of all its user with its parent company, Facebook, for marketing and advertising purposes. On the other hand, WhatsApp makes every effort to refuse the enactment of the Intermediary Guidelines which are necessary to uphold law and order and curb the menace of fake news.”


Read more about what is happening in Lakshadweep.


What About Other Platforms?

While OTT platforms are likely to comply with the norms, the position of social media intermediaries remains uncertain. The tech giants were given three months to implement the IT guidelines, and only Koo, an Indian microblogging platform, has established the grievance redressal system along with a Resident Grievance Officer and a Chief Compliance Officer.

Facebook, on the other hand, has confirmed its stance, saying, “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.”

While Twitter has kept itself quiet, Google has maintained its legal compliance in a statement released on Tuesday. “We respect India’s legislative process and have a long history of responding to government requests to remove content where the content violates the local law or our product policies. We have consistently invested in significant product changes, resources, and personnel to ensure that we’re combating illegal content in an effective and fair way, and in order to comply with local laws in the jurisdictions that we operate in,” a spokesperson said.

What Would Non-compliance With Guidelines Mean?

Ban on social media firms and apps seems somewhat improbable, especially considering the entire machinery of the government relies on these intermediaries for outreach in urban areas. However, the government has mentioned that the apps will not be able to seek protections guaranteed under the IT Act. So far, social media platforms are not held accountable for what the users are publishing. In the absence of the act’s protection, not only will they be held responsible, but may also be prosecuted for the actions of the users.

The larger problem that needs to be addressed in this conversation is the right to privacy and free speech of citizens. Where does individual agency lie in terms of voicing one’s opinion? If the government, in limiting the power of social media firms, is being unconstitutional, then how would we define Twitter’s recent action of terming a tweet “manipulated media”?

A tenable solution can only be reached if both parties can manage to strike a balance between the law of the land and the safety as well as interests of those who actively use these platforms, and come to a mutual agreement. For now, drawing a line and separating ideological whims from ethical action seems to get more complicated every day.

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