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Rules For Social Media (12 February 2021)

Rules For Social Media (12 February 2021)

Context:

Amid the ongoing row with Twitter over the delay in the suspension of several accounts, the Union government on Thursday informed Parliament that it is in the process of amending rules pertaining to the Information and Technology sector so that social media platforms could be made more responsive and accountable to Indian laws. The government stated that the new rules will also ensure digital media platforms adhere to the Code of Ethics.

Background:

The announcement came shortly after Union Law and IT Minister Ravi Shankar Prasad told the Rajya Sabha that the government will not shy away from acting against social media platforms if they are misused to spread fake news and incite violence.  

A spat has been going on between Twitter and the Indian government over a suspension list, which contains mention of over 1000 accounts that need to be suspended or at least blocked in India for spreading fake news and hatred on ongoing farmers’ protest in the country.

The social media firm has refused to act against all the accounts mentioned in the list, stating that it will not suspend accounts that belong to the media, journalists and activists to uphold freedom of speech and expression.

Summary of the Debate

Kind of rules that the government is working on as far as the social media is concerned:

  • As of now especially in the context of the present controversy the rules under the IT Act especially the 69A provision of the IT Act are very clear and very cogent.

  • They have gone through the test of the supreme court also wherein it was examined and mentioned that since there is a recourse available for anyone who is aggrieved by any order in 69A to represent themselves.

  • The orders which were passed by Ministry of Electronics and Information Technology under 69A for violating the norms which have been specified the reasons for passing an order in 69A are very clearly defined in 69A, these order will pass and the normal recourse available for any entity against whom an order is passed is that first, it has to comply with the order and then when it's given an opportunity to put up of its own version before the competed authority then that competent authority takes into account of what the party is saying and then passes a reasonable order explaining the whole thing.

  • A couple of years back, The Ministry of Electronics and Information Technology (MeitY) have come with intermediary guidelines which it was in a draft form.

  • It actually said that if there is any offensive content, if there is any e-content that will be damaging, the intermediary shall be bound to inform its user that it's going to take it down and it had the right to take it down apart from that there were even timelines prescribed on what should be the takedown and all that based on the supreme court judgment and so on.

                                          

Issues with the regulation of Social media platforms:

  • There are multiple forms of digital media, but at social media per se there are two types of social media platforms:

    • The Indian version of social media which is there from Indian startups.

    • The overseas players who permeate across seamlessly across boundaries and operate.

  • In the process what happens is that the world is actually divided into boundaries.

  • The beauty of digital medium is, it transcends boundaries but the bane of it is, when it transcends boundaries it may cross certain jurisdictions which it should ideally be compliant with and not necessarily a trample upon them.

  • India is a democracy, so obviously freedom of speech and freedom of expression and all of that do come into play, when we look at the laws of the land.

  • But at the same time what is important is upkeep of law and order and if there are offensive content which is there the platform has to take the owners to decide on the take down, to be ensuring that the geography that you are operating with you don't end up messing up with the normal life of the geography.

  • Many often most of the social media platforms always claim that they belong to platforms and they are not publishers, they are not subject to the same level of scrutiny and same level of due diligence that is required for any publishers.

  • For example, TV channel or a newspaper have to confirm to those provisions of the law but platforms say that here since most of the content is user generated and they are just the platform which are providing that they are not liable for the responsibility that would accrue as a publisher.

  • But in very often in cases, these social media platforms do exercise editing do exercise selective blocking, do exercise selective positioning of content, so for all practical purposes they are also in the category of publishers and not platforms and once you are in the category of publishers then all the rules and norms which apply to a publisher will apply to them also.

  • Most of the overseas players technically do not exist in India and the concept of permanent establishment which we have been trying to push for in taxation and as well as law enforcement is concerned, because the entities that operate in India are largely either the back office or the development center or the marketing office or the liaison office and the true owner of that platform which is giving the service is sitting somewhere overseas which is why we have always had problem when law enforcement was seeking out for investigation of a particular case.

  • Cover that is often taken by overseas players is Section 230 in USA which gives ample kind of insurance coverage due to which you're not able to transcend and make it on genuine issues even.

Legal perspective of these issues:

  • There are two situations:

    • The position as it existed at the time of the pronouncement of the Shreya Singhal judgment.

    • The kind of circumstances and exigencies that have unfolded post that particular judgment.

  • Until that particular judgement, most of us were perhaps on the same page that social media platforms especially like Twitter and Facebook perhaps are entitled to treatment as intermediaries and as someone who participated in that matter should certainly aware of what happened in the particular matter.

  • Therefore, section 69A was also on the challenge but the Supreme Court ultimately upheld the vires of the particular challenge and upheld the vires of the particular provision despite having struck down section 66A and the corresponding provision of the Kerala state police Act.

  • Post the Shreya Singhal judgment: Post the Shreya Singhal judgment, a number of instances have raised certain red flags with respect to the consistency and the manner in which social media platforms pixelate certain views, push certain views or block certain views and that inconsistency at least has seen a spike in the last four to five years significantly.

  • Usually, the concept of editorial control is seen as that control which is exercised prior to the transmission of the publication of the content.

  • However, when it comes to social media platforms the fact of the matter is, they are in a position to exercise ex-post facto editorial control which is to save.

  • Post the publication of the content, they still have certain rights and powers to remove certain content or block certain content under the terms of use as well as the privacy policy as well as under the guidelines of the intimidatory rules which they're supposed to have.

  • So, there is a certain degree of editorial control that even these platforms exercise whether it is pre or post, does not make a difference as long as you're in a position to interfere with the content whether before or after publication.

  • In principle, the government certainly has the power to regulate this particular medium no medium is an exception to the government's power to regulate under article 19 (2).

Is self-regulation the best way to address some of the issues that have now come up?

  • Digital media regulation is something where normally self-regulation is prescribed because the amount of content and the volume of content is so much that if the government would have set up something equivalent of what was done for say films and all the sensors, it would be virtually impossible to screen every content before it goes online.

  • The only effective way could be to lay down the broad guidelines, to lay down what is permissible, what is not permissible and then expect a self-regulation to carry on.

  • The self-regulation has worked well for in various sectors and it can work well for social media also.

  • By self-regulation, if any entity indulges in violation of any law of the land or any provisions of the of the constitution or the legal or the statute books then that entity will be taking that as a risk and that would entail whatever consequences come in.

  • So, while self-regulation is there but 69A is also there, Article 19(2) is also there, so one will have to be conscious of the responsibility that one has and especially in the kind of the number of volumes, the number of people who use these platforms, if a fake news is floated or if some anti propaganda is put in there which can inflame religious or other emotions then it can lead to violence it can lead to loss of life.

  • There has to be effective measures, there has to be examples where in any major violation is dealt with sternly.

  • Any social media platform or any tech company who is who is launching its product in India, they would be conscious of the sensibilities of the nation or the people, of the law of the nation and they would be as law-abiding as they are in their own countries.

  • Like none of these platforms could think of violating these laws in the USA, when there were certain violations made, they would immediately flag those tweets and post as something which is not true or which has been found to be wrong and they even ended up blocking the elected President of the united states from their platform for violation.

  • When you are so aware of the provisions of the law in the country, where you have been incorporated, if you are operating in any other country you have to abide by the similar standards.

  • So, government has to be firm of what government has to do to safeguard its own interests and any tax platform which is operating in India has to abide by the by the law of the land.

Way Forward:

  • India has been like welcome to all tech companies, global players. We are not like some other neighboring countries wherein major IT companies are not allowed also to operate.

  • So, we have been welcoming but then when we do so we do this with expectation that they will abide by Indian law they will abide by Indian rules and constitutional provisions and will expect them to do that. So, once that is done, this issue will be resolved and we expect all of them to grow prosper make money but at the same time respect Indian laws.

  • Social media has contributed in a big way and democratized the whole process of information dissemination and more importantly today, government as one of the most active participants in the social media whether it was lockdown or whether it was in terms of the whole pandemic, the communication was coming through these social media platforms and the government was leveraging it.

  • Therefore, it is important that this self-governance or self-regulation which is being practiced should be practiced in its true sense and any breach of that actually puts at risk the potential of freedom that not only the current social media platforms enjoy but even the future ones that may emit.

  • Entities which enjoy a large following certainly are in a position of responsibility and they must understand that the manner in which they choose to abide by the law and conduct themselves effectively sets an example for every other entity in that particular space especially the startups. Therefore, it would help if these entities operate within the four corners of the constitution.

  • The borders should be drawn and there should be more clarity in regulation and there should be more communication of clarity of regulation which is necessary in the current context.

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