Note to Readers: MC ExpertEye is a weekly series of articles that will dive deep into an important topic by seeking answers from experts.
The Indian government’s new rules regulating social media firms and streaming services kicked up a storm recently. Many said the rules censor the only sphere of Indian media that wasn’t censored before, while others said that foreign services need to operate under Indian laws, and that this was a long time coming. Moneycontrol spoke to experts to figure out whether the concerns are valid, and what these laws indicate about our country.
Natasha Kavalakkat, a Mumbai-based lawyer
The new IT rules expand the scope of application from just intermediaries to include various digital media portals, like publishers of news and current affairs content, publishers of online curated content, social media intermediaries, etc. In the code of ethics, the standards for restricting content are vague and ambiguous, with the setting up of a three-tiered structure, with “grievance” redressal mechanisms and adjudicatory authorities. This has caused quite a stir in the public that has already reached our high courts.
There is a drip feed that has been steadily growing in the minds of the Indian public that each individual is somehow a stakeholder in the collective morality of the nation. We already see courts flooded with litigation against content shared on various online platforms for offence to religious sentiments, threat to public decency, or depictions of sexuality, by self-proclaimed defenders of Indian morality. And today, with the new rules, we will see these persons proceeding against these platforms under codified law.
Notably, in Shreya Singhal v. UOI, the Supreme Court struck down Section 66A of the IT Act for violating constitutionally protected freedom of speech. Commenting on the several frivolous cases instituted under the provision, the Court had noted that the vague and arbitrary standards in the law were prone to political and personal misuse.
The new IT rules too, are vague and arbitrary with seemingly no restriction on what constitutes a “complaint”, and a dependency on adjudication of these complaints by authority. The result of such law effectively silences free speech, especially by small-scale content providers that are unable to defend their rights.
Bhaskar Majumdar, Managing Partner, Unicorn India Ventures
Coming from the traditional media world as I do, I think OTT (Over The Top platforms) is merely a form of delivery mechanism for content. As far as consumers go, they don’t differentiate how the content is being delivered. So they look at every type of content be it soap opera or edgy content, through the same lens. I therefore think all content of the internet, be it from OTT (Netflix, Prime) and news content available on Facebook , Twitter and other social media should be subjected to the same regulations as offline content in broadcast, cinema and print are.
Sandip Kumar Panda, Founder, SaaS provider Instasafe
The rules are draconian. Nobody will be able to enforce it but tomorrow if something goes wrong the government will be able to catch it. Scientifically, it is not implementable. Privacy is a function of how much I know about you. What the government is talking about is traceability. We are a mature country, throwing everything at the media doesn't make sense. Definitely the media should be controlled because currently they are making unnecessary chaos. But how it should be controlled is a big deal. Tomorrow if I have to post something I should have the ability to post it in incognito.
Anivar Aravind, Public Interest Technologist and Software Engineer
The Automated Filtering requirement (Rule 4(4)) for significant social media intermediaries in the new IT rules for proactively identifying information that include act or simulation like rape, and child sexual abuse. The intermediaries should also display notice to users, who are accessing such content. This is a dangerous development.
It is the first time blanket permission is being given for using blackbox Artificial Intelligence algorithms to check and filter content. We need to understand that India has many languages and using AI for Indian languages does not even understand words, their forms or contexts. A blanket automated provision, without any oversight on algorithms and AI models, will result in threatening free speech, while platforms can escape blaming nascent AI and bugs in the automated filtering system.
Indian Regulators need to consider residents and internet communities and their technology sovereignty more actively in its user or data governance policies.
Anushka Jain, Associate Counsel, Internet Freedom Foundation
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been under fire by various stakeholders since they were notified. Such excessive regulation being put in place without a parliamentary process calls into question the constitutionality of these rules.
The rules aim to regulate intermediaries as well as OTT Platforms and Online News Media Platforms. Thus, the new IT rules aim to regulate not only the content an individual posts online but also content made available on websites such as Netflix and Amazon Prime, content published on news media platforms such as The Wire and The Caravan through a code of ethics which is vague and overbroad and will thus have a chilling effect on free speech.However, one of the most controversial provisions of the Rules is Rule 4(2) which creates a traceability requirement upon messaging platforms such as WhatsApp, and Signal. This traceability requirement comes in addition to a 2009 Ministry of Home Affairs notification, which states that the IT Rules, 2009, may require decryption of any message transmitted through these platforms. Such measures threaten privacy and result in further freedom of speech violations.