The article examines the issues with  Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Change in the immunity for social media platforms

• With the social media platforms amassing tremendous power, the Government of India and has over time sought to devise a core framework to governs social media.
• This framework known as the “intermediary liability” has been made legally through Section 79 of the Information Technology Act, 2000.
• This framework 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.
• Recently, the Government of India announced drastic changes to it through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Issues with the Rules

1) Privacy concern

• 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, there are several provisions in the rules that raise privacy concerns.
• 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.
• The core of the traceability requirement undermines the core value of private conversations.

2) Regulation without clear legal backing

• The rules seek to regulate digital news media portals as well as online video streaming platforms.
• Rules will 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.
• 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.

Way forward

• 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.

Consider the question “What is the purpose of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and what are the concerns with these rules?”

Conclusion

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.

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