This article has been authored by Rishika Saraswat, a first year student at WBNUJS, Kolkata.
On the 25th of February 2021, the Ministry of Electronics and Information Technology (“MeitY”) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“IT Rules, 2021”). The Information Technology Act of 2000(“IT Act, 2000”), under Section 87, empowers the Central Government to make rules for enforcement of the provisions of the Act. These are not the first set of guidelines to stem from the IT Act, 2000. The Government had published the Information Technology (Intermediaries guidelines) Rules, 2011 which are succeeded by the new Rules in 2021. The IT Rules 2021 differ from the 2011 ones as they additionally aim at regulating digital news media, social media intermediaries, and Over the Top (“OTT”) streaming platforms.
The IT Rules have been introduced during a highly volatile stage of social media’s existence. Coming into force at a time when dissent and voicing of opinions are often subject to charges under the UAPA or Sedition laws, the Rules pose a great threat to privacy and free speech. There has been widespread resentment towards the IT Rules by various OTT Platforms and more significantly, digital media houses.
This article aims to discuss the impact of the IT Rules 2021 in the sphere of social media intermediaries and how it impacts user privacy. The growing impact, and usage of social media in political, local, and global issues has brought to light its concerns with the Right to Privacy under Article 21, and Freedom of Speech and Expression under Article 19 1(a) of the Indian Constitution. Addressing these concerns in light of the IT Rules 2021 hence becomes of contemporary significance.
Defining Social Media Intermediaries
The IT Rules 2021, under Rule 2(w) define a social media intermediary as an intermediary whose sole or primary purpose is to facilitate online interaction and activity between two or more users. This interaction includes creating, uploading, sharing, disseminating, or accessing information by users through their services. There exist a plethora of such intermediaries that have active users in the country today but not all of them would come under specific scrutiny of these IT Rules, 2021. As demarcated by Rule 2(v), “significant social media intermediaries”, i.e., those having registered users exceeding a minimum requirement would come under the purview of specific mentions in these Rules. The minimum user requirement to fall under this category was notified by the government to be fifty lakhs and above. This would include social media platforms like Twitter, Facebook, WhatsApp, and Instagram who have registered users that significantly exceed the minimum threshold.
Part II of the IT Rules, 2021 lays down the due diligence and grievance redressal methods to be undertaken by these intermediaries. Within this arises concern of breach in end-to-end encryption that intermediaries guarantee to their users. End-to-end encryption is also legally recognised and protected under Section 84A of the IT Act, 2000. With the rising data privacy concerns, these encryptions have been ensured by and strengthened on various platforms like WhatsApp and Facebook Messenger. Rule 4, sub-rule (2) of IT Rules, 2021 directs “significant social media intermediaries” to have a mechanism in their interface that would allow identification of the “first-originator” of certain messages (information) which have the capability of “disrupting public order”, and even those that are against the sovereignty and integrity of the country or defamatory in nature. Such information can then be provided on a request made through a judicial order passed by a competent court or through an order passed under Section 69 of the IT Act 2000.
One of the problems with authorising the Government with access to information regarding “first-originator” of a message is, the breach of end-to-end encryption. For a message to be traceable, decryption is a prerequisite, and allowing such decryption violates the encryption policy of platforms like WhatsApp, Signal, and Messenger. Enabling traceability in any manner which is compatible, has been previously dismissed on account of being susceptible to spoofing which means providing unauthorised access to outsiders or even the government itself. This raises severe concerns regarding user-privacy and their sharing of content on such platforms after the implementation of the IT Rules, 2021.
The second issue with this provision is that it is visibly conflicting to its parent legislation, the IT Act 2000. Section 84A of the IT Act, 2000 empowers the government to provide encryption methods which mean that it helps “secure” the use of electronic medium. Contrary to this, the IT Rules, 2021, through Rule 4(2), provide for the weakening of such encryption, violating the purpose laid down in the IT Act, 2000. Thus, such handicapping of encryption which is guaranteed by intermediaries is indeed problematic and hence raises legislative concerns.
Hindrances to Freedom of Speech
Free speech is a fundamental right guaranteed by the Indian Constitution; though, the enjoyment of such right has seen arbitrary curbs in recent times. With the intermediary Twitter being caught in the cross-fire of deleting posts (tweets) to blocking accounts, blatant violations have been observed. The IT Rules, 2021 give enough leeway to the government to further restrict this freedom on account of it being vague in language. Rule 3(b) lists out the categories of content which can be disabled from access or removed from an intermediary platform by a notification from an agency (authorised) of the Government.
The concern arises in the subjective nature of these categories. Material that is defamatory, libellous, violative of public order, sovereignty, integrity or unity of the nation is included in these categories. The subjectivity of these criterions is what is unsettling about the provision. Deciding what is or is not violative of integrity or unity for instance cannot be put to an objective test, which is why authorising the Government to undertake such a decision may lead to an abuse of power. Any kind of content that may go against a policy of the government in power can be wrongfully classified under one of the above-mentioned heads and will have to be taken down.
Understanding the powers that these rules confer upon the government against users’ expression through social media platforms evidently showcases the chilling effects it may have on the freedom of speech of the public.
The IT Rules, 2021 are a set of comprehensive provisions governing the spheres of Digital News Media, Social Media Intermediaries, and OTT platforms. There are multiple concerns that have emerged in the regulation of all these three spheres leading to an approach for redressal in multiple instances. On focusing on the sphere of social media intermediaries, it is distinct that the Rules are controversial on several folds, privacy and free speech violations being the primary concern. Legislative intent has also been infringed upon since there has been disparity with the parent legislation and it is not limited to the instances mentioned within this text. On qualifying as fair and reasonable in the provisions that deal with grievance redressal, the legislation continues to bear its flaws. This highlights a need for strengthening privacy regulations along with other justifiable freedoms which are in line with the Constitutional provisions and helping in the advancement of the Fundamental Rights guaranteed.