Practical Pieces & Perspectives

In February 2021, the Ministry of Electronics and Information Technology released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[1] (‘the Rules’) under Section 87 read with Section 79(2) of the Information Technology Act. The Rules intend to exert extensive Government control over content circulated online.[2] The Rules apply to social media intermediaries, significant social media intermediaries, original curated content platforms in addition to digital media platforms.[3]

The objective of the Rules is to increase the liability of intermediaries for the information circulated on their platform.[4]The Rules ensure swift action is taken against any unlawful or infringing information made available on these intermediaries.[5] Multiple groups, including civil society, policy organisations, think tanks and news organisations, have criticised the rules to be repressive.[6]

As Whatsapp files its lawsuit against the Indian government for mandatorily enforcing the IT Rules,[7] the aim of this article is to trace these guidelines to countries that have previously tried to implement similar measures and the consequences thereof. To regulate content on the internet, many nations have introduced snippets of these rules in different jurisdictions.[8] Nevertheless, India seems to have consolidated these practices in its recent Act.[9] Thus, this article, has analysed similar regulations that have been passed in foreign jurisdictions, the objectives they sought to establish, why they failed and lessons to learn from them.

Under Section 3(2)(b) of the Rules, the government of India has accorded thirty-six hours for social media intermediaries to remove any information if notified by a court or by the Appropriate Government or its agency.[10] The guidelines for removing such information are equally vague:

“[W]hich is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force.”[11] This Section’s expansiveness virtually allows the Government an opportunity to notify the removal of content in all fields.[12]

Such rules are akin to Germany’s NetzDG Act but encompass a wider ambit.[13]

In Germany, the government adopted the NetzDG Act, also known as the Network Enforcement Act, as a reaction to social media intermediaries not implementing any self-regulatory initiatives.[14] The nation had witnessed a rise in hate speech and disinformation when Angela Merkel granted a million Syrians asylum in Germany.[15] The Act required social media intermediaries, which had 2 million users or more, to set up a complaint mechanism to allow users to report content; it also warranted such intermediaries to remove ‘manifestly unlawful content’ within 24 hours and further submit a transparency report biannually to the government.[16] The government cited the reasons for the Act were to prevent any dissemination of offensive and aggressive content, which fell within the ambit of Section 1(3) of the NetzDG Act.[17]Thus, the Act created no new criminal offences but instead propelled responsibility on intermediaries for unlawful content.[18]

However, despite the Act not adopting any new criminal offences, it was deemed unconstitutional and marked as a ‘censorship law’.[19] Speech-restricting laws are not unfamiliar in most nations; even the International Covenant on Civil and Political Rights, under Article 19(2), allows for restrictions on speech, provided such restrictions are necessary, proportionate and provided by the law.[20] However, the German government shifted the burden on the intermediaries and provided a limited window to remove illegal content.[21] This condition by the government indirectly encouraged censorship and suppression of lawful speech.[22] Essentially, social media intermediaries were forced to remove more content than necessary and would err on the side of caution to avoid fines; often known as ‘overblocking’.[23] This indirect control has been termed ‘New School Speech Regulation’[24] as speech is controlled by controlling digital networks.

The German law neither provided judicial oversight nor judicial remedy in case an intermediary had inadvertently violated a person’s freedom of expression or right to access information.[25] Thus, avoiding accountability and succumbing to governmental pressure and successfully evading judicial scrutiny.[26] It was also noted that social media intermediaries would amend their community guidelines to the strictest rules worldwide to avoid the costs entailed when adapting to each country’s demands, also known as over-removal.[27] Thus, effectually, Germany would dictate intermediary’s behaviour across the globe.[28]

Germany has also set a dangerous precedent for other governments.[29] Russia, Philippines, and Singapore, currently contemplating similar laws, cite the German law as a positive example of removing “illegal” online content.[30] Thus, although the law in Germany is now being altered due to harsh criticism from civil society, [31] the damage cannot be undone. Moreover, Germany, a developed nation, has governmental trust and transparency; the same cannot be vouched for countries such as India wherein dissent is suppressed and such laws may be wielded for the government’s agendas.[32] For instance, the government had posts removed on Twitter that were in search of oxygen for Covid patients.[33] The government, in an attempt to protect its reputation, potentially risked losing the lives of its citizens.[34] Thus, learning from the consequences of Germany’s censorship law, it is imperative for India to modify its Rules.

Under Section 4(7), the government of India has made it mandatory for social media intermediaries to allow voluntary verification of accounts on their platform by linking them to an active Indian mobile number.[35] This is similar to a rule Italy had proposed in 2019 in an attempt to counter misinformation.[36]

The government of Italy had proposed to ensure that government IDs would be used to open and operate social media accounts.[37] Luigi Marattin, an Italian Member of Parliament, asserted that the nation’s political debate was being “manipulated and distorted.”[38] He argued that his proposal would “prevent the web from becoming a sewer.”[39] Thus, a debate between the right to anonymity and privacy against the consideration to protect public interest ensued.[40] The main reason behind mandating governmental IDs was identifying the poster and tracking the person in cases of hate speech and other incriminating posts.[41] This was also an attempt to ensure that intermediaries take responsibility for abusive content on their platforms.[42]

However, this proposal was swiftly shot down mainly for two reasons. First, if the government wished to track certain posters, they could easily do so by tracing the IP address.[43] The IDs would only work to shift the burden on the intermediaries.[44] Second, the principle of online anonymity was considered integral to the principle of internet access.[45] The importance of anonymity ensures the protection of whistleblowers, victims of modern slavery and outing domestic and sexual abuse.[46] Further, this anonymity helps explicitly the operations of human right defenders and journalists, especially those under authoritarian regimes.[47]

Since mobile numbers are authenticated using government verification IDs, mandating the linking of mobile numbers to operate social media accounts has the potential to dislodge any anonymity that persons wish to maintain. This allows easy tracking of individuals, threatening their right to free speech.[48] Since India currently ranks 142 out of 180 countries on the World Press Freedom Index, [49]  this is especially concerning as it further stifles the freedom of journalists and people who choose to express dissent.[50]

Rule 5(2) of the Rules mandates a significant social media intermediary to allow the identification of the first originator of the information.[51] This introduces the traceability requirement, which leads to an inevitable compromise of end-to-end encryption.[52] The EARN IT Act[53]  introduced in the United States Senate last May aimed to bring about similar changes in its safe harbour protection law.[54] The objective of the Act was to prevent child sexual abuse material and child exploitation online.[55] Though the law did not specifically mandate revealing the first originator of the information, it did give the power to an unelected commission under the Attorney General to form a list of best practices that social media intermediaries like Whatsapp, Facebook, or Twitter would have to abide.[56] Safe harbour protection would be conferred only when these intermediaries follow the best practices.[57] The looming threat of revealing the originator of content hangs over the provider since not revealing contents of files due to encryption would make detection of child sexual abuse material a cumbersome task.[58] Thus, the bill was severely criticised and received backlash since it threatened to eliminate end-to-end encryption, inevitably risking users privacy.[59]

In India, end to end encryption is guaranteed to social media users by the application.[60] However, the Indian law is a brazen attempt at undermining the right to privacy of its citizens. Thus, the decision of the court will play a pivotal role in directing India’s path towards digital security and privacy.

The rules regulating OTT (over-the-top)  platforms mandate digital news media and OTT platforms to set up a grievance redressal and appoint a grievance officer residing in India.[61] This encourages self-censoring content since complainants can appeal to a self-regulating body that can reprimand and even censor content.[62] This self-regulating body is headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from media, broadcasting, entertainment, child rights, human rights or other relevant fields.[63] However, the independence of the body is confirmed by the Ministry of Information & Broadcasting, a department of the government.[64]

The amendments to Turkey’s broadcasting laws enhanced regulations on its OTT platforms by the Radio and Television Supreme Council and the Information and Communications Technologies Authority.[65] The Council can direct OTT platforms to remove content and/or block access to it for protecting vague and broad purposes like national security, public order and prevention of crime.[66] The European Union criticised the amendments, specifically highlighting the lack of independence in the regulatory bodies.[67] A list of selected films was removed from Netflix’s catalogue.[68] One of which includes an episode of Designated Survivor, in which a fictional Turkish president is seen demanding the extradition of an opposition leader from the US.[69] Further, it also cancelled an original Turkish series titled ‘If Only’ since the authorities demanded the exclusion of the gay character from the script.[70]

Interventions by regulatory authorities will hinder the creative freedom enjoyed by OTT Platforms.[71] The Code of Ethics introduced in the IT Rules, 2021 already requires OTT platforms to “exercise due caution and discretion” while featuring activities, beliefs, practices, or views of any racial or religious groups.[72] It includes broad categories like content that may affect the state’s sovereignty, jeopardise security and foreign relations, incite violence, or disturb public order.[73] The similarities between Turkey’s rules and India’s Code of Ethics and the consequent chilling effect in Turkey is a glimpse into the probable consequences for OTT platforms in India.

The IT Rules are glaring with obvious issues especially threatening the fundamental rights of users.[74] It is pertinent to note that some of these policies have been implemented in countries previously and have mostly been ineffective or repressive.[75] Though India’s socio-economic demography may be dissimilar, some of these laws have been tested in democratic countries recognising the spirit of freedom of speech and expression.[76] In cases like the United States of America and Italy, the proposals failed as a draft legislation and were not implemented in law.[77] However, the repercussions on individual freedom and the rise of censorship is evident with Germany’s NetDG and Turkey’s OTT regulations.[78]