Social Media Platforms Frustrated By India’s Changing Regulations

US-based social media platforms have been frustrated by the relentless changing rules and regulations in India, the latest being India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Microblogging site Twitter has been facing the wrath of Indian authorities ever since it flagged a tweet by BJP spokesperson Sambit Patra on a ‘COVID Toolkit’, attributed to the Congress, on how to target the Centre over its handling of the COVID crisis. The row over the purported toolkit escalated after the Special Cell visited Twitter India offices on May 24 and served a notice, asking it to share information based on which Patra’s tweet had been tagged ‘manipulated media’.

The government had asked Twitter to remove the ‘manipulated media’ tag as the law enforcement agency was looking into the issue. Twitter India Managing Director Manish Maheshwari was questioned by the Delhi Police’s Special Cell on May 24 in connection with its probe into the case. He was questioned about the company’s policy on flagging tweets as ‘manipulated media’. Indian representatives of microblogging platform Twitter appeared before the parliamentary panel chaired by Congress’ Shashi Tharoor to discuss the issue of its guidelines and the misuse of its platform. During the deposition, Twitter India’s public policy manager Shagufta Kamran and legal counsel Ayushi Kapoor represented Twitter before the panel.

During the meeting, the panel asked the company, if it follows the law or the land, to which a representative responded saying, “We follow our own policies.” The members then told Twitter that law of the land is “supreme” and asked the company to abide by them. They also asked Twitter to explain why it should not be fined for ‘violating’ rule of land. On February 25, 2021, the Central Government enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which cast various obligations on internet intermediaries, especially on social media platforms. It was reported that social media platforms such as Facebook, Instagram and Twitter were yet to comply with their obligations under the 2021 Rules. This gave rise to an apprehension among users of such websites that these websites could either stop operations or be banned in India for such non-compliance.

A user registered on Facebook can share information with his connections without the same being edited by Facebook in any manner. This passive role adopted by Facebook is what in essence enables it to be classified as an intermediary. Under Section 79 of the Information Technology Act, 2000, intermediaries are granted protection from incurring any liability for third-party data available on their platform or hosted by them. This protection is essential as various intermediaries such as Facebook, Twitter or YouTube do not monitor the content posted by third-party users on their platforms. However, if any such content uploaded by a third-party user is in violation of any law, the intermediary does not incur any liability for such information.

Prior to the current 2021 rules, the 2011 Rules laid down the standards of due diligence required to be observed by intermediaries. The 2011 Rules required intermediaries to publish rules and regulations, privacy policy and user agreements which would enjoin each user not to post information which would contravene any law in force. These rules also required intermediaries to disable access or remove information which is unlawful upon receiving actual knowledge of the same. In Shreya Singhal versus Union of India, the Supreme Court read down the requirement of actual knowledge of an intermediary to mean knowledge of a court order directing it to disable access or remove such information.

The 2021 Rules supersede the 2011 Rules. In these rules, the requirement of publication of rules and regulations, privacy policy and user agreements which stipulate that no user shall post information which would contravene any law in force have been retained.  The 2021 Rules now permit the intermediaries to take down any unlawful information on a voluntary basis and such voluntary removal would not affect the protection afforded to them under Section 79 of the Information Technology Act. The 2021 Rules lay down additional due diligence requirements to be observed by “significant social media intermediaries”.

Any intermediary who primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services and has more than 50 lakh registered users is classified as a significant social media intermediary. Thus, all popular social networking platforms such as Whatsapp, Facebook, Instagram and Twitter would be required to observe these additional due diligence requirements. They social media platforms were given a three-month timeline for ensuring compliance of these rules. So far, none of the major international social networking platforms have complied with these requirements. Facebook has released a statement that it aims to comply with the 2021 Rules and was in discussion with the government on certain issues.

Under Rule 7 of the 2021 Rules, if an intermediary fails to observe any of the rules laid down, it loses protection afforded to it by Section 79 of the Information Technology Act. Simply put, this would mean that an intermediary like Facebook or Twitter would be open for liability if a third-party user posts unlawful content on their platforms. On June 19, experts at United Nations Office of the Human Rights Commissioner have said in a report that it is concerned that India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in their current form, do not conform with international human rights norms.

The observations were made in Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the right to privacy. The report is authored by Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Clement NyaletsossiVoule, Special Rapporteur on the rights to freedom of peaceful assembly and of association and Joseph Cannataci, Special Rapporteur on the right to privacy.

“As noted in previous communications sent to your Excellency’s Government, we are concerned that these new rules come at a time of a global pandemic and of large-scale farmer protests in the country, where the enjoyment of the freedom of opinion and expression, including the right to receive information, and the right to privacy, is particularly important for the realisation of several other civil, cultural, economic, political and social rights,” the report said.”We would like to recall that restrictions to freedom of expression must never be invoked as a justification for the muzzling of any advocacy of multiparty democracy, democratic tenets and human rights,” the report said.

The report said as a global leader in technology innovation, India has the potential to develop a legislation that can place it at the forefront of efforts to protect digital rights. However, the substantially broadened scope of the Rules is likely to do just the opposite. “We would therefore encourage the Government to take all necessary steps to carry out a detailed review of the Rules and to consult with all relevant stakeholders, including civil society dealing with human rights, freedom of expression, privacy rights and digital rights”, the report said.

The question here is whether freedom of speech is paramount or not. The Narendra Modi regime has been chipping away at various pillars of democracy and it is no wonder that another opportunity for the general public to voice its woes is being muzzled. Media too have been generally silenced be it through force or coercion. Popular voices have been thus silenced time and again by authoritarian governments the world over.

Bail for Delhi Riot accused

The impositions of Unlawful Activities (Prevention) Act (UAPA) law against protestors have always been criticized by human rights activists and lawyers. A couple of days back, the Delhi High Court granted bail to DevanganaKalita and Natasha Narwal, and Asif Iqbal Tanha in the Delhi riot case.  Pinjra Tod activists DevanganaKalita and Natasha Narwal were arrested a year ago in the Delhi riots case. They were arrested in May 2020 for allegedly being part of a premeditated conspiracy behind the communal violence that broke out in northeast Delhi in February 2020 during protests against the Citizenship (Amendment) Act (CAA). The Delhi High Court granted interim bail to student activist Asif Iqbal Tanha, accused in a northeast Delhi riot case, so that he may appear for his three remaining backlog BA examinations papers.

However, the Delhi Police approached the Supreme Court after the Delhi High Court granted bail to DevanganaKalita and Natasha Narwal, and Asif Iqbal Tanha. While refusing to stay the Delhi High Court order, the Supreme Court observed that reading down of anti-terror law is an important issue and may have pan-India ramifications, and sought responses from three activists. It also said that the High Court judgement will “not to be treated as precedent by any court” to give similar reliefs, the Supreme Court said while hearing the Delhi Police’s appeal against the bail.

In its observation, the High Court said, “ We are constrained to say, that it appears, that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the state has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity’. If such blurring gains traction, democracy would be in peril.”  “Protests against governmental and parliamentary actions are legitimate; and though such protest are expected to be peaceful and non-violent, it is not uncommon for protestors to push the limits permissible in law,” the court had said. What the High Court observed is significant as the right to protest, just as freedom of speech, cannot be curtailed by imposing draconian laws by an all-powerful state. Let us wait for a further judgment by the Supreme Court of India in this case.

Sedition case against Aisha Sultana

Another interesting case that has come up in recent times is the one against Lakshadweep resident and activist Aisha Sultana, who has been charged with sedition for her “bioweapon” remark. The sedition case was registered against her on June 9 by the Kavaratti police following a complaint from BJP leader Abdul Khader Haji. The film director-cum-activist—a prominent face of Lakshadweep residents’ protest against a slew of draft proposals mooted by administrator Praful K Patel for the “development” of the island chain—had approached the High Court fearing arrest.

Kerala High Court had directed filmmaker Aisha Sultana to appear before the police in Lakshadweep for interrogation, but also granted her interim bail in case she is arrested. In an interim order, the court said Sultana should be released on interim bail for a week after executing a bond of Rs.50,000 in the event of arrest. She was told to appear before the Kavaratti police on June 20 for questioning. Sultana, during a debate on MediaOne TV on the proposed reforms and decisions of Patel, said the Centre has used a “bioweapon” on the island. Allegedly referring to the recent spurt in COVID-19 cases in Lakshadweep, Sultana said: “I can clearly say that Centre has used bioweapon in the island. There is already a calculation that China has used the coronavirus as a bioweapon…” she had said.

After the statement sparked controversy, Sultana clarified that she meant that the Centre was using administrator Patel as a “bioweapon” on the islands. The police had opposed her appeal saying that she had encouraged communalism.  The unpopular measures proposed by Praful Patel include drafts of the Lakshadweep Animal Preservation Regulation, Lakshadweep Prevention of Anti-Social Activities Regulation, Lakshadweep Development Authority Regulation and amendment to the Lakshadweep Panchayat Staff Rules.

Even in this case, there is an attempt to silence those who speak against a ruling authority such as the Administrator in the island who has become unpopular after a slew of measures that has run foul with the peaceful people of the Union Territory. Following the Kerala High Court’s direction in the case, the Lakshadweep Administration is trying to shift the islands’ cases to the Karnataka High Court as early as possible.