As deadline ended, government mulls legal action on social media giants

Published : May 28, 2021 10:10 am | By: M D Sridharan

As the deadline for new guidelines for social media platforms as well as OTT ended May 25, none of the top social media giants adhered to the new rules. But the government is clear on its stand and simply want social media giants to comply with the laws

 In February, 2021, the government of India announced Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("Intermediary Guidelines") for social media platforms as well as OTT (over the top) streaming platforms. The new guidelines were aimed at robust grievance mechanism and measures for speedy redressal. The new guidelines promulgated by the ministry of information technology, designates “significant social media intermediaries” as standing to lose protection from lawsuits and criminal prosecution if they fail to adhere to the code.

The government announced new guidelines “to curb misuse of social media platforms and regulate the OTT platforms. The guidelines also covered digitised content that can be transmitted over the internet or computer networks, intermediaries such as Twitter and Facebook, publishers of news and current affairs content, and curators of such content. “All significant social media intermediaries were required to appoint a chief compliance officer, nodal contact person, resident grievance officer. Each of these was supposed to be employees residing in India.

The rules also necessitated significant social media intermediaries to have a physical contact address in India published on its website or mobile application or both.

One of the most important aspects of the new rules is the Grievance redressal mechanism. The government asked the intermediaries to prominently publish on the website, mobile application or both- (a) the name and contact details of grievance officer and (b) the complaint mechanism. The grievance officer was mandated to acknowledge the complaint within 24 hours, dispose of it within 15 days, and explain the complainant for any action/inaction.

Over the years while an individual can be taken to court based on a compliant, the intermediaries always conveniently escaped from penal actions citing Section 79 of Indian IT act. The section 79 of the IT law provides exemption from liability of intermediary in certain cases, Section 79 of the Indian IT Act has provided a ‘safe harbour’ protection for the intermediaries from liability for the acts of third parties who use their infrastructure for their own purposes. Section 79(1) of the Act grants intermediaries a conditional immunity with regard to any third party information, data or communication link made available or hosted by them. This immunity is subject to section 79 (2) and 79 (3) of the Act.  In a sense Section 79 provided an absolute protection cover for the social media giants and they did not comply with the law of the land which is a must.

In a democracy when rules are formed by the government, all citizens and business houses including intermediaries must follow. Even if one does not agree and considers certain law as draconian, he or she must fully comply with it as long it stays active or the government comes out with repeal or a modification or amendment of the law. There have been several instances in the past that even repeated calls and emails from the Ministry of Electronics and Information Technology (MeitY) have not been properly responded by the social media giants.  In most cases, these intermediaries inform the government that they are awaiting instructions from their headquarters in the US. How is it fair for companies to do business in India and earn revenue in millions from India, but will not comply with the law of the land and simply take orders from their bosses sitting in the US when it comes to grievance redressal who will pass orders without understanding the ground reality.

The government asked the intermediaries keep monitoring the content  including technology based automated tools to identify information that depicts  false news, politically biased reports that trigger arson, rape, child sexual abuse or conduct, or information that has previously been removed. Social media intermediaries were asked to publish a monthly compliance report containing details of (a) the complaints received; (b) the action taken; and (c) the number of links/ information removed or to which access is disabled.  In case any objectionable information is removed by an intermediary on its own accord, the following steps need to be taken (a) ensure that prior to the removal/ disabling access, the user who created, shared, uploaded such content is notified of such removal/ disabled access along with reasons; (b) provide an adequate and reasonable opportunity to the user to dispute the action and request for reinstatement of such access; and (c) resident grievance officer to maintain appropriate oversight over the dispute resolution mechanism.

Over the years these giant social media platforms such as Twitter, Facebook, Instagram have gained enormous powers. There have been several instances where the criminals and politicians with vested interests have successfully used the social media in pursuit of their goals. They never own responsibility for the content and simply getaway and also exhibit double standards.  If Capitol Hill is attacked then these social media giants supports government’s action. But when Red Fort is attacked, these giants support activists. They are biased and resort to flagging some, deleting some and blocking some and adopt subjective criticism without any proper mechanism to check the veracity of the content. So, the government came out with new rules that demand sheer accountability and curb their double standards when dealing with India.

In India Congress and Left parties have been pedalling tons and tons lies ever since Modi came to power. Everyone knows what Congress did in the 2019 elections, especially with the Rafale deal...For months together Congress came out with “Chowkidar Chor Hai” campaign against PM Modi. The party repeatedly hurled abuses and baseless allegation of swindling money using social media.

In India Congress and Left parties have been pedalling tons and tons lies ever since Modi came to power. Everyone knows what Congress did in the 2019 elections, especially with the Rafale deal...For months together Congress came out with “Chowkidar Chor Hai” campaign against PM Modi. The party repeatedly hurled abuses and baseless allegation of swindling money using social media. Today every political party has an IT cell, managed by technical experts, who use social media extensively to reach their goals and also target their opponents.

Also, the social media giants play a dual role and act as a publisher and also a platform. They cannot play both and cannot be judge on matters of importance by propagating false news. Over the years there have been several incidents with biased reports that have resulted in disturbing communal harmony and political stability. There have numerous incidents of organised vitriolic attacks on various activists and campaigners, both who have fought for and against the government’s policies, using social media.   

The social media platforms conveniently use templates like “free speech” and “promoting fair communication” against the government’s moves to enforce what it calls “accountability and transparency”. In the past several celebrities have been hounded by social media sharks using these platforms. Whether it is a complete defamation or abuse, there is no liability. They exercise their discretion to modify and adjudicate upon the content through their own norms without any reference to Indian Constitution and laws. An intermediary must be a passive observer not a facilitator. These kinds of double standards cannot be accepted by any government.

Every law abiding citizen wonders, what’s wrong in Indian government’s new ethics code for social media. But the opposition cries that the BJP government is trying to clip the wings of social media and take absolute control. The opposition claims that the government has not followed the normal practice of tabling the new rules in the parliament and get its approval. Instead it is using arm twisting tactics. They also point out that once BJP used these social media platforms successfully but now they are attacking them. But the fact remains that the government is not banning social media but only trying to regulate and monitor the content with certain laws. Also, in fact several laws considered draconian have been introduced and are in force even now.  Just because BJP has come out the new regulations the opposition is crying foul.

There is a strong uproar by the critics who say that the user’s privacy will get affected with the new rules of the government and it will be considered as a backdoor access to the details of the users by the government. This is absurd and there is no logic behind such argument. When a foreign intermediary can have access to all the personal details of the users including their phone numbers, email addresses, photos and more, why cannot the users trust their own government?

The proposed social media ethics rules ostensibly seek to address the proliferation of fake news and envisage a proactive role for intermediaries. Moreover, the rule will basically require social media giants like Facebook, Twitter and others to provide the government with a user's personal information only when the government needs to enquire or verify some suspected activity by the user. After all, the government legitimately possess the right to unmask people credibly accused of wrongdoing.

As the guidelines issued in February, 2021, by MeitY that required all significant social media intermediaries to designate executives for these roles expired on May 26, the government is mulling to take further actions on these platforms. Except for one Indian social media company - Koo, none of the significant social media intermediaries such as  Twitter, Facebook  and Instagram have appointed the Resident Grievance Officer, the Chief Compliance Officer and Nodal Contact Person  as required by the government

While some of social media platforms have sought more time up to six months for furnishing compliance as required,  the government wonders why they need  such a long time just to appoint there people. Instead of adhering to the rules, some of these platforms are still demanding   time up to six months for furnishing compliance, which exposes their non-cooperative attitude.

WhatsApp has filed a legal complaint in Delhi against the Indian government seeking to block regulations coming into force. While the law requires WhatsApp to unmask only people credibly accused of wrongdoing, the company says it cannot do that alone in practice. Because messages are end-to-end encrypted, to comply with the law, WhatsApp says it would have break encryption for receivers, as well as "originators", of messages.  Facebook has said that it agrees with most of the provisions but is still looking to negotiate some aspects.

Twitter too finally responded to the new rules and said it would strive to comply with applicable law in India.  To keep our service available, we will strive to comply with applicable law in India. But, just as we do around the world, we will continue to be strictly guided by principles of transparency, a commitment to empowering every voice on the service, and protecting freedom of expression and privacy under the rule of law," a Twitter spokesperson said. The government on hit back at Twitter saying the social media giant should stop beating around the bush and comply with the rules framed by the Ministry of Information and Technology. In a statement, the government said "India has a glorious tradition of free speech and democratic practices dating back centuries. Protecting free speech in India is not the prerogative of only a private, for-profit, foreign entity like Twitter, but it is the commitment of the world's largest democracy and its robust institutions," the government said in the statement.

The government cannot ban social media overnight. But at the same time, the problem arising out of fake news that leads to communal disharmony is not only affecting India. It has grown in to global phenomena and many countries like suffer the impact of fake news. To curb this menace Indian government need to have a global consensus. A global benchmark is required to streamline social media.




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