Social Media Sites vs Government of India

29 May 2021  Read 1310 Views

The New IT Rules and The Controversy with the Social Media Sites.

The futures of the top social media platforms have come under contention after government sources revealed that these giant tech platforms have failed to comply with India’s new social media rules that rolled out on 25th February, 2021. Platforms such as Facebook, Twitter and Instagram have failed to meet the deadlines laid down by the Centre in the new IT rules. This has led to dispute between the government and the social media companies with some speculating that sites like Facebook, Instagram, and Twitter are likely to get banned.

What is the Centre’s new guidelines for Social Media?

On 25th February, 2021, the Centre introduced The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 to regulate the content of the Over-the-Top platforms and other top social media sites like Facebook, Whatsapp, YouTube, Instagram and Twitter. The new IT guidelines have been introduced to make social media platforms more responsible and accountable for the content that they allow their users to upload on their platforms.

According to the new IT Rules, the platforms are required to disclose to the first originator, regarding any inappropriate message or tweet that is linked to the sovereignty of India, security of the country and relations with other foreign states. This gave rise to controversies between the centre and the social media platforms.

What is the reason for the dispute?

The dispute between the government and the social media arose due to the new IT Rules, which were implemented on 26th May,2021 by the Indian Government. The new rules make it necessary to track down the original source of any message sent through social media platform like Facebook or Whatsapp. For instance, if any misinformation or fake post goes viral, then the government has the power to ask the company about the originator of the post and the social media sites are bound to share the same information with the government. This new rule will harm the existing users as according to this rule, social media sites will have to trace all the messages including the private conversations of the users, which can amount to violation of privacy.

The government has defended the new IT rules stating that the rules do not violate the privacy of any user. Under this rule, it is necessary to ask for the information of the original source in order to prevent or investigate messages in case of “very serious crimes” that are linked to the sovereignty and security of the country. The government had already given a period of three months, which the social sites have failed to comply with.

The rules also says that these platforms require a grievance redressal mechanism which should include a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer. All social media platforms must publish these details on their apps and websites and explain to users the procedure to make a complaint against any content on the platform. These complaints need to be acknowledged within 24 hours of receipt and should be acted upon within a period of 15 days from the date of receipt. However, none of the sites, except for Koo, has appointed any of the members yet.

Will the sites like Facebook, Twitter and Instagram get banned in India?

The Union Government had already given a period of three months, warning that non-compliance with the new rules would result in the sites losing their intermediary status which provides them exemptions from any liabilities of any third-party information. As the deadline to accept the IT Rules ended on 25th May, none of the companies has fully complied with the rules, which left a majority of the people wondering whether these sites will get banned in India. An India microblogging and social networking website, Koo, with close to 6 million users, is the only platform that has implemented the rules as of yet. 

Facebook, on 25th May announced that it has been aiming to comply with the rules and are holding further discussions. A Facebook spokesperson mentioned that they are aiming to comply with the provisions of the new IT Rules and discussions are being conducted on certain issues which needs more engagement with the government. He also stated that they are committed to make Facebook a platform where the users can freely and safely express themselves.

Just a day after Twitter pitched in for a constructive dialogue with the Indian Government regarding the new IT Rules, a petition has been files against Twitter in the Delhi High Court for non-compliance with the IT Rules. The petition states that Twitter should perform the statutory and executive duties. The said petition was filed by Amit Acharya who is a practising advocate in Delhi High Court and the Supreme Court of India. According to the petition, Acharya came across false and defamatory tweets on 26th May which prompted him to raise the issue with the Resident Grievance Officer.

Twitter issued a statement on 27th May, raising safety concerns of its employees working in India and also the potential threat to the freedom of speech and expression of its users. Twitter stated that it has certain concerns over certain aspects of the regulation regarding which they want to have an open discussion with the authorities. The company said that they plan to advocate for changes which inhibit free and open public conversations and that they will continue their discussion with the Government to safeguard the interest of the public.

Does this mean that these sites will be banned?

According to the founder of MediaNama, Nikhil Pahwa, the ban is unlikely, however it all depends on what the government wants. From what it seems, there has not been sufficient time given to these platforms to be able to comply with such rules. Hence, they should be given an extension. Unless the Government decides to do something regarding this, nothing is going to happen. So far, there is no confirmation on whether the social media sites will be banned or not in India. However, the Centre is not happy with the responses from the platforms and has already issued a warning which might make the companies criminally liable as per the existing laws of India.

Whatsapp Against the New IT Rules

Whatsapp, which has over 530 million users in India, filed a petition against the Government of India in the Delhi High Court over the “traceability” clause with regards to the new IT Rules, requesting the court to declare these rules as unconstitutional. Relying on the judgement of KS Puttuswamy v Union of India, Whatsapp stated that the said requirements do not pass the tests enshrined under Article 21 of the Constitution of India, is in violation of Article 14. It is also in violation of the Right to Freedom of Speech and Expression and Section 79 and 69A of the Information Technology Act.

Challenging the Rule, Whatsapp said that tracing the chats of the user will have an impact on their privacy and the same will break the system of “end-to-end encryption”. In the view of this, Whatsapp issued a writ petition and seeks the following prayer:

  • To declare the impugned rule is in violation on Articles 14, 19(1)(a), 19(1)(g) and 21 of the Indian Constitution.

  • Criminal Liability should not be imposed for non-compliance with these Rules, and any imposition of criminal liability is unconstitutional, ultra vires the IT Act and will be illegal.

About the Author: Antalina Guha | 29 Post(s)

Antalina Guha, is in the  5th year of B.A. LL.B course in Ajeenkya DY Patil University, with a core interest in Intellectual Property Rights and Criminal law.

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