Internet Freedom – Have we progressed at all?
A new age for media arrived almost two decades ago with the emergence of popular social/ digital/ online media platforms like Orkut, Facebook and Reddit. The novel concept of platforms facilitating free exchange of ideas, opinions and content gained global attention. Users sitting in different parts of the world could assent or dissent or simply view the exchange even without identifying themselves. Social media was emerging as a modern-day tool celebrating freedom of speech and expression.
The cloak of anonymity offered by social media platforms soon became a major governance issue for several jurisdictions around the world. While some countries like China, Iran and Syria chose to completely ban the freedom provided by these social media platforms, India took a more lenient regulation-free approach.
Eventually India slipped to the “partly free” category as per the “Freedom in the World Report, 2021”. The report was released shortly after the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (“Rules”) were notified. An overview of these Rules and the broad governance introduced thereunder has been summarized by us here. In this article, we focus on how these Rules affect social media intermediaries (“SMI”) .
SMI includes any entity which facilitates the display and sharing of information online and enables interaction between users. The key requirements for SMIs under the Rules include –
3. An SMI may be asked to remove any Adverse Content from its platform within 36 (thirty-six) hours upon receiving actual knowledge of such Adverse Content from a court or an appropriate Government agency.
4. User information collected for registering on the SMI platform can only be retained for a period of 180 (one hundred and eighty) days after the cancellation/ withdrawal of such registration.
Further, for the big fishes in the pond, if an SMI has more than 50 lakh registered users on its platform, then, it becomes a significant social media intermediary (“SSMI”) and is subject to additional compliance under the Rules. These include –
(a) publishing monthly compliance reports detailing the complaints received and the action taken.
(b) identifying advertised or sponsored information for its users.
(c) deploying technology to monitor sexually explicit or abusive content on its platform.
(d) having a physical address in India for the purpose of communication/ contact with the SSMI.
(e) providing a mechanism to its users to track their complaints on the SSMI platform.
(f) enabling users who register for their services to voluntarily verify their accounts. Any information that is collected by the SSMI for the purpose of verification is not be used for any other purpose.
(g) ensuring that the SSMI informs the publisher of any information about the removal of any content which the SSMI removes of its own accord.
(h) appointing 3 (three) key officers to ensure compliance with the Rules, i.e. –
|Chief Compliance Officer||1. Responsible for ensuring compliance with the Information Technology Act, 2000 and rules made thereunder.
2. Liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such SSMI observes due diligence.
|It may be a key managerial personnel or such other senior employee of the SSMI who resides in India.|
|Nodal Contact Person||24×7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of the law.||It may be an employee of the SSMI, other than the Chief Compliance Officer, who resides in India.|
|Resident Grievance Officer||1. To acknowledge any complaint within 24 (twenty four) hours and dispose-off such complaint within a period of 15 (fifteen) days from the date of its receipt.
2. To receive and acknowledge any order, notice or direction issued by the Government, any competent authority or a court of competent jurisdiction.
|It may be an employee of the SSMI who resides in India.|
Pursuant to the Rules, both public social media platforms (like Instagram and Twitter) and private messaging platforms (like WhatsApp and Telegram) are to be regulated as SMIs.
An SSMI messaging platform is additionally required to enable identification of the ‘first originator’ of any message. The court can order an SSMI to identify the first originator of the information to prevent, detect or prosecute certain listed offences, like offences:
- in relation to sovereignty and integrity of India, security of the state, friendly relations with foreign states, or public order, or
- of incitement to an offence relating to the above, or
- in relation with rape, sexually explicit material or child sexual abuse material.
Though the Rules clarify that the contents of the message will not be required to be disclosed, it is not clear that how will averments be proved without such disclosure. The Rules may have caused an uproar in the Indian media, however, an unbiased assessment may suggest that the Rules lack teeth and take a “slap on the wrist” approach.
Users indulging in advertising, marketing and e-commerce activities on SMI platforms (without any direct interference or control of such SMIs) are a concern for various consumer centric industry bodies. For instance, the Advertising Standards Council of India released the draft guidelines on influencer advertising on digital platforms (“Draft Influencer Guidelines”). The Draft Influencer Guidelines define terms like “Advertising”, “Material Connection”, “Digital Media” and “Influencer” and puts the onus on the Influencer and the Advertiser to publicly identify promoted content.
Though the Influencer Guidelines carry only persuasive value, their introduction seems to be crucial considering the lack of regulations around falsely advertised online content. The objective of the Draft Influencer Guidelines seems to fit with the intent of the Rules. This may be a move towards setting expectations with respect to the content floating on social media today, and eventually progressing towards a more regulated online environment.
 The Rules define a “social media intermediary” as an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.
 “Adverse Content” here means any unlawful information, which is prohibited under law in the interest of – (a) the sovereignty and integrity of India; (b) security of the State; (c) friendly relations with foreign States; (d) public order; decency or morality; or in relation to (a) contempt of court; (b) defamation; (c) incitement to an offence relating to the aforementioned.