📅: 25^th May 2021    ⌚ : 20 Minutes   

Topics covered from the syllabus: GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation. GS-3: Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security; money-laundering and its prevention.

Note

• Following is the summary of 'The Big Picture' discussion, which was aired on RSTV.
• Host: Vishal Dahiya
• Panellists: Abhishek Singh, CEO, MyGov; Advocate Anuj Agarwal, Cyber Law Expert.
• Please note that some inputs have been given by our team in order to make the topic more relevant to UPSC.

Context

• On 25^th February 2021, the Government of India had released a set of rules for the social media intermediaries, titled ‘The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021’.
• The rules have come into force after three months of their release, i.e. on 25^th May 2021.

Prelims Focus

IT Act, 2000: The act seeks to facilitate beneficial uses of cyber-space in India and enhance cyber security in the country through penalising offences related to cyber-crime. Section 66-A: The section deals with offensive and derogatory information on social media. It was in the news because experts have contended that in multiple cases it was used to silence free speech and expression by the authorities. Finally, it was struck down by the SC. Section 69-A: This section gives the right to the authority to take down any content on the internet against the sovereignty and integrity of India and the security of the states, apart from other reasons. The government banned many Chinese apps in multiple rounds under the Section.

Mains Focus

Need for the Rules

• Origin of the rules: The genesis of the rules lies in the Prajjawala case of 2018. In this case, SC directed the government of India to formulate rules regarding the removal of content showing child pornography and other instances of the indecent portrayal of women.
• Indecent Portrayal of Women: There have been multiple complaints received by the Law Enforcement agencies concerning the indecent portrayal of women in mainstream social media. This kind of posts range from deliberately released private photos due to a failed relationship, to morphed images of random women.
• Law and Order Issues: There have been media reports in the recent past concerning flare-ups in different regions of the country, due to many posts inciting violence among the people. There is a need to understand the impact of social media on the raw intellect of the people, who are easily swayed by the constant stream of posts inciting hatred in the people.
• Extremism: It is common knowledge that extremist organisations are using social media apps and websites to spread hatred among the respective communities. They have also proactively used the apps to recruit youth for spreading the malicious content as well as to carry out subverted activities in many countries.
• Lack of Accountability: Multiple authorities and agencies have raised the issue of lack of accountability in the current paradigm. This is especially problematic for some of the users whose profile gets restricted or deactivated for not complying with the fine print of the terms and conditions of the intermediary.

The Rules

• Parts: There are two parts of the rules, pertaining to two different sections. Part II is related to the Social Media intermediaries, which is regulated by the Ministry of Electronics and Information Technology. On the other hand, Part III is related to the Digital Media and Over The Top (OTT) platforms, being regulated by the Ministry of Information and Broadcasting.
• Intermediaries: The rules are applicable to social media intermediaries. The intermediaries can be defined as the entities storing and transiting data on other persons’ behalf. It may include social media apps and websites like Facebook and Twitter, online marketplaces like Amazon and Flipkart, and Internet Service Providers.
• Types of Intermediaries: For the purpose of encouraging innovation and providing relief to new players, the rules make a distinction between the big platforms and new start-ups. The intermediaries, which have more than 5 million users are referred to as ‘significant’ social media intermediaries. They are obligated to perform some additional activities, in addition to the activities applicable to all intermediaries.

Major Features of the Rules

• Grievance Redressal Mechanism: The rules call for a Grievance Redressal Officer to resolve the grievances of the user. The details of such an officer need to be posted on the social media website. Any grievance raised by a user needs to be acknowledged within 24 hours and should be resolved within a period of 15 days from the date of receipt of the complaint.
• Immediate Redressal of certain complaints: If the complaint is in the nature of indecent portrayal of women, then the access to such post needs to be revoked within a period of 24 hours. Similarly, for the court orders as well as the government notices, there should be an immediate action as and when such a notice is received by the intermediary.
• Obligations of ‘significant’ intermediaries: As stated above, apps with a user base of more than 5 million have added responsibilities:
  • Appointing a chief compliance officer, who should be resident in India, to make sure that the app is complying with the Indian laws and rules.
  • Appointing a nodal contact officer, who is available 24x7 to coordinate with the Law Enforcement agencies.
  • Appointing a resident grievance officer, to look into the complaints of the users.
  • Identification of the first originator of a message.
  • Publishing a Monthly Compliance Report, about the complaints received and action taken on them.
  • Voluntary User verification mechanism for the users who want to verify their profile. For e.g. Twitter has a blue tick mechanism for the verified users.
  • Opportunity for the users to be heard if their content is removed by the website.

Benefits to the Users

• Widespread Usage: The platforms are having a wide user base in India, with India being one of the biggest markets for such platforms. For e.g. India is the biggest market for Facebook with a total user base of 41 Crore users, as compared to just 19 Crore users in its second biggest market, i.e. the US. Similarly, WhatsApp has almost 53 Crore users in India.
• Constitutional Values: Social Media has been a boon to the users by providing them a platform to express their ideas freely (liberty), to question the authorities and make them aware of the deficiencies in the system (justice) and giving everyone an opportunity to showcase their talent without any fear of nepotism or requirement of huge financial resources (equality). Therefore, in that sense, social media has played the role of an emancipator for many sections of the society.
• Grievance Redressal Mechanism: There are times when a user faces restriction or removal of profile on a social media portal. This is especially disappointing as many users have invested a lot of time and energy in creating and updating their respective profiles, including uploading years of content and photos, many of which might not have had a backup saved locally. Therefore, even if the restriction imposed by the intermediary is just, the user must be given an opportunity to present her/his side of the story, in keeping with the principles of natural justice.
• Respect the sensitivities: The provisions would ensure that the users are not shown illicit or illegal content depicting sexual violence, child pornography or content promoting hatred in the community. Again, the insertion of age filters will make the platforms better suited to users of all ages, including children and they would not be exposed to sensitive content.

Way Forward

• Safe Harbour Provision: The government has pointed out that the intermediaries, not in compliance with the rules, would lose the ‘Safe Harbour protection’ provided to them. Safe harbour is a provision in Article 79 of the IT Act, 2000 (see inset). It refers to the understanding that an intermediary is merely a content hosting platform for the users and third parties. It has no immediate control over the content posted on its platform by the user.
  • Not a publisher: Since the intermediary is not a publisher of the content, therefore it cannot be held liable for such content. This is akin to not punishing the highway operator for a collision of cars on the highway.
• Confrontation between the Platforms and Government: The experts have pointed out that the rules are more in the nature of self-governance mechanisms rather than the actual usurpation of power and the authority by the government. Therefore they should be welcomed by the intermediaries. However, the industry has attained a confrontationist attitude towards the government by filing petitions in the court.
• Compliance by the Intermediaries: The social media intermediaries are entities functioning in India and are bound by the rules of the land. In the event of non-compliance, the immunities provided to them (like the safe harbour provision) might lapse. The rules had a time of 3 months for the platforms to comply. However, the industry has sought more time citing difficulties in the wake of the corona crisis to comply with the provisions of the Rules.
• Definition of Intermediary: Many experts have pointed out that the intermediaries are not completely immune from being classified into the category of ‘Publishers’. This is because the content displayed on the social media websites is curated in a specific way to create curiosity and satisfy the current user. Since the intermediaries are regulating the display of content, they do not strictly fit the definition of ‘intermediary’ only.

Conclusion

1. The exceptional growth of social media has come with its flaws including the growth of objectionable and illegal content. So far, the government has assumed an accommodating stance towards the intermediaries by allowing them immunity under the ‘Safe harbour’ provision.
2. However, it needs to be understood that in an equal society no one is above the law and the platforms need to comply with the rules issued by the government. It is important to address the concerns of the platform, but through proper channels within the confines of the law of the land.

 

Practice Question

1. The new IT rules have ample provisions to not stifle creativity and innovation and are more in the nature of the self-governance mechanism. Elaborate. Also, discuss the significance of the rules vis-a-vis the users of social media in the country.

 

UPSC Previous Year Questions

1. Use of Internet and social media by non-state actors for subversive activities is a major concern. How have these have misused in the recent past? Suggest effective guidelines to curb the above threat.                         (GS3 – 2016)
2. What are social networking site and what security implications do these sites present?                          (GS3 – 2013)

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