In the polarised environment that we now inhabit, there are few public agreements. One of these rare instances is an agreement that social media is broken. For many commentators, this is an area that needs urgent government intervention. But the form and shape of this intervention becomes again an issue of adversarial contest and controversy. This issue is fundamental to how today’s information ecology operates as large Silicon Valley platforms have become gatekeepers of social behaviours and the tremendous power they hold is anti-democratic.
The Government of India has been alive to these dangers and has over time sought to devise a core framework that governs social media. This framework known as the “intermediary liability” has been made legally through Section 79 of the Information Technology Act, 2000, that has been supplemented by operational rules, and the Supreme Court judgment in Shreya Singhal v. Union of India. All this legalese essentially provides large technology companies immunity for the content that is transmitted and stored by them. In return for this immunity, they have to comply with a set of conditions that is set by the government through a rule-making power. On Thursday, the Government of India announced drastic changes to it through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
These changes, as announced in a joint press conference by the Minister for Information Technology and the Minister for Information and Broadcasting, contain three big highlights. First, fresh obligations for social media companies and platforms. Many of these obligations have been the topic of discussion since December 2018 when The Indian Express first broke the news about a “confidential” meeting in which the proposed amendments were mooted. The substance of many of these proposals has been retained and hurt both user privacy and free expression online.
It is important to note that the regulations do contain some features that bring accountability to social media platforms. For instance, they require that prior to a content takedown, a user should be provided adequate notice. However, on balance, such progressive features are heavily outweighed. Take traceability, where instant messaging platforms which deploy end-to-end encryption that helps keep our conversations private will now effectively be broken. This is because now the government may require that each message sent through WhatsApp or any other similar application be tied to the identity of the user. When put in the larger context of an environment that is rife with cybersecurity threats, an inconsistent rule of law and the absence of any surveillance oversight, this inspires fear and self-censorship among users. While in the present language, there is greater specificity and some salutary language, ultimately, all of it means little. The core of the traceability requirement undermines the core value of private conversations.
Two other changes need to be highlighted that go beyond social media companies — the government regulating digital news media portals as well as online video streaming platforms. Here, an oversight mechanism is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation. For instance, as per Rule 13(4), this also now includes powers of censorship such as apology scrolls, but also blocking of content. All of this is being planned to be done without any legislative backing or a clear law made by Parliament.
A similar problem exists with digital news media portals. The purview of the Information Technology Act, 2000, is limited. It only extends to the blocking of websites and intermediary liabilities framework, but does not extend to content authors and creators. Hence, the Act does not extend to news media despite which it is being stretched to do so by executive fiat. This may seem like legal semantics but all of this visits itself in terrible outcomes. For instance, the oversight function will be played by a body that is not an autonomous regulator but one composed of high ranking bureaucrats. This provides for the discretionary exercise of government powers of censorship over these sectors.
Here, the argument is not against the complete absence of regulation, but one that proceeds from clear first principles of constitutionality and safeguards the right to receive information for end users while minimising threats. This could have ideally been achieved through more deliberative, parliamentary processes and by examining bodies in other democracies, which face similar challenges. For instance, OFCOM, a regulator in the United Kingdom, has been studying and enforcing regulations that promise higher levels of protection for citizens’ rights and consistency in enforcement. Instead, the present formulation increases government control that suffers from legality and core design faults. It will only increase political control.
Without question, Thursday’s press conference is a watershed moment in the history of the internet in India. It will radically transform the digital information ecology. Here, to our shared regret, the substance of many of the requirements were never put to public consultation or deliberation by experts. This is particularly the case for the regulations for online news portals and video streaming platforms. On these aspects, there has been opacity. Many of the proposed changes continue with greater finesse, and what I had first in 2018 termed as a “Chinese model of online surveillance and censorship”. It is feared that despite material changes made to the draft rules, and some noticeable improvements in greater precision, the core and the substance of the autocratic approach that devalues free speech and privacy remains. In some respects, it has even become worse, with the proposal for an illegal and unconstitutional extension of executive power to regulate online news media and video streaming platforms. While every internet user in India needs oversight and accountability from big tech, it should not be at the cost of increasing political control, chilling our voices online and hurting individual privacy.
This article first appeared in the print edition on February 26, 2021 under the title ‘Accountability with a cost’. The writer is an Ashoka Fellow and executive director, Internet Freedom Foundation.
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