Amid speculations that social media giants like Facebook and Twitter will be banned in India for their non-compliance to the Centre's new guidelines under the Information Technology Act, which was notified on February 25, the companies on Tuesday responded saying that they were working on implementing the new rules.
The social media giants were given a three-month window to comply with the guidelines or lose immunity and face criminal prosecution. But what are the new changes in the IT Act that has caused so much furore?
Analyzing the IT (Intermediaries and Digital Media Ethics Code) Act 2021
The new IT (Intermediaries and Digital Media Ethics Code) Act 2021 was released on February 26, 2021, by the Ministry of Information and Broadcasting that will supersede the Information Technology (Intermediary Guidelines) Rules, 2011. The new guidelines require social media companies with more than 50 lakh users to remove unlawful content within a specific time, appoint officers for grievance redressal and create a mechanism for tracing 'first originated message' in social media services that provide messaging.
Significant Social Media Intermediaries (SSMIs) and Social Media Intermediaries (SMIs)
The new Act classifies social media companies into two categories, social media intermediaries and significant social media intermediaries based on user size. Significant social media intermediaries, such as Facebook and Twitter have users of more than 50 lakh and have additional compliance measured given by the Act.
Intermediaries are platforms that allow users to create and upload content. Since they do not have much editorial censorship and simply act as hosts, the users had the freedom to upload any content they wished. These intermediaries also had immunity from criminal liability under Section 79 of the IT Act. However, failure to comply with the new rules can cause the intermediaries to lose their immunity and face prosecution due to any unlawful content on their platform.
Appointment of Officers
SSMIs also have to appoint three officers who are residents of India to address the grievance redressal system in the companies. A Chief Compliance Officer will ensure that the company complies with the rules and regulations of the new IT Act. A Nodal person who will act as a contact with law enforcement agencies for 24/7 coordination. A Resident Grievance Officer will be responsible for the functions mentioned under the grievance mechanism redressal. The officers must publish a monthly grievance report with all the complaints received mentioned in detail.
AI Tools and Voluntary Verification
Rule 5(4) mandate social media intermediaries to enable automated tools such as AI technology to help take down sexual content. On further scrutiny, this sub-clause can move further from just identifying and taking down sexual content and invade users privacy at the whim of the government.
Rule 4(7) will require SSMIs to allow the user to 'voluntarily verify your identity' which should be similar to biometric or physical identification which would be visible to all users. The problem with this rule is that it could soon become mandatory and thus destroy the idea of anonymity.
Traceability of 'First Originated Content'
According to rule 5(2) of the IT Act, SMIs that provide services in messaging (Whatsapp, Signal) must make it mandatory to trace the identity of the 'first originator' of the information. While the move aims to crack down on fake news and sexual content, it may require platforms to remove end-to-end encryption which may expose users' privacy. Further, previous attempts to establish traceability has been seen as vulnerable to spoofing where individuals can modify the information to frame an innocent person. Internet Freedom Foundation, an NGO that advocates digital rights and liberties has said that the traceability function can have a 'chilling effect on speech in private conversations' as told to The New Indian Express.
OTT and Digital Media
OTT and Digital Media would be regulated by the new Act under 'Code of Ethics and Procedure and Safeguards in Relation To Digital/Online Media'. This code is applicable to all streaming platforms such as Netflix, Amazon Prime, Hotstar as well as digital news media platforms. To ensure adherence to the Code, a three-tiered structure would be created in which grievances would be addressed. The tiers are in three levels and are as follows- "Level I – Self-regulation by the applicable entity"; "Level II – Self-regulation by the self-regulating bodies of the applicable entities"; "Level III – Oversight mechanism by the Central Government." This oversees by proxy is problematic and is likely to result in government censorship.
Response of Social Media Giants
"We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people's ability to freely and safely express themselves on our platform," said a Facebook spokesperson to The New Indian Express.
The new IT Act have caused an uproar on social media as it undermines the right to privacy of the users and causes intermediaries to further degrade the anonymity of users in their platform?