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New social media guidelines and the terms of disagreement

S Ronendra Singh/Richa Mishra | Updated on June 10, 2021

Line of control: Under the new rules, social media platforms must take down content flagged by the authorities within 36 hours   -  ISTOCK.COM

The ongoing tussle between the Indian government and social media entities is over matters of privacy and responsibility

* The two sides have been equally vocal about their stances

* There is a need for a local platform because people may have issues that need to be addressed, minister Ravi Shankar Prasad says

* Social media sites believe that a user’s right to privacy is being violated

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A battle royal is gathering momentum. The platform and the subject, for once, are the same — social media. The crux of the matter is privacy versus responsibility. And it is over this issue that social media giants such as Twitter, WhatsApp and Facebook as well as Google, which calls itself a search engine, are at war with the Indian government.

India’s new Intermediary Guideline Rules became effective on May 26, after the expiry of a three-month period given to social media intermediaries for compliance. Under the rules, those with over 50 lakh users must appoint a grievance officer, nodal officer and a chief compliance officer. And these personnel have to reside in India.

The two sides — the Indian government and social media entities — have been equally vocal about their stances. And their might is now being tested in courts. The bone of contention is the Information Technology (Intermediary Guidelines) Rules, notified on February 25, 2021.

For many, though, it is still unclear what the war is all about. On the face of it, all that the government is asking for is the appointment of a local officer to address grievances of local users. What is the issue there?

There is a need for a local platform because people may have issues that need to be addressed, says Ravi Shankar Prasad, Union minister for law and justice, electronics and information technology and communications.

“When a distraught mother approaches me as an IT minister saying the ex-boyfriend of her daughter is circulating all her intimate photographs, what should I do? Ask her to complain to America, as Twitter says,” he asks. “When the dignity of a woman is disrobed, her morphed images are circulated, what should I suggest?”

This is a problem that any user can face, the minister stresses. “Today, not only we public figures are subject to daily criticism and abuse. Journalists and editors are being trolled, judges are being trolled... Suppose a new entrepreneur is setting up a business, all his competitors will flood social media against him. He gets immediately handicapped; people are being defamed. These guidelines address not the use of social media, but the abuse and misuse of social media,” he states.

The social media sites do not see it this way. They believe that a user’s right to privacy is being violated. Facebook-owned WhatsApp moved court last week, urging that the rules be declared unconstitutional.

Prasad is clear that the government is not going to step back from this position. “In today’s world social media has become a big source of pornography and paedophilia,” he says, adding that drugs, weapons and other contrabands can be sourced through the use of a social media platform or what is called an intermediary. The rules define a social media intermediary as the platform 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.

“In such circumstances, it is imperative that there is a properly framed regime to find out the person/institution or bodies, who are the originators of such content messages. It may be necessary to get such information from the intermediary,” he says.

The new rules also require that the platforms take down any content flagged by the authorities within 36 hours and set up a robust mechanism to respond to complaints. Non-compliance with rules would result in these social media companies losing their intermediary status that gives them exemptions and certain immunity from liabilities for any third-party information and data hosted by them. They could be even liable for criminal action in case of complaints. And this is where the industry is crying foul.

According to Prasad, the rules stipulate appointing a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and the rules, and shall be liable in any proceeding relating to information, data and communication being made available or hosted by the company.

On the issue of removal of content, the government order is final, he says. “Take all reasonable tactical measures to remove/ disable access. That’s all we are asking.”

There is merit in the argument, but what does the legal fraternity have to say about it? According to Mishi Choudhary, Legal Director, Software Freedom Law Center, New York, the government and the companies should work together on a solution.

“We need new Rules that reflect users’ rights and don’t go beyond the IT Act. There should be no criminal liability for employees of an Intermediary. There can be a provision for fines in case of non-compliance but we should do away with this particular provision. Companies and the government should participate in the process sans public theatrics and work out a new version of rules that can address the issues of misinformation and criminal investigations.”

Social media networks must respect and abide by Indian laws, adds cyber law expert Karnika Seth. “Whether it’s the government or any social media network, the rule of law is equally applicable to both parties. Our Constitution guarantees the freedom of speech and right to privacy, equality before law to all citizens of India.” Transgression is not allowed within the confines of law, Seth adds.

“If commercial entities make profits in India, they must abide by mandatory laws of India, including privacy laws and be answerable to Indian courts.”

Should local users have a local redress mechanism for their grievances? The question being raised is that when social media entities have different policies for different countries, why not for India, which is a huge revenue generator for them.

While the debate carries on about the government wanting to know the originator of a message, WhatsApp has been asking its users to accept its new privacy policy.

“After giving everyone time to review, we’re continuing to remind those who haven’t had the chance to do so to review and accept,” it says. The policy has caused some concern among users for while the company says it doesn’t share data with Facebook, the new measure will allow WhatsApp to use some “business conversations” for advertising.

The local users, meanwhile, are hoping for clarity. Till then, their relationship with social media is, to say the least, “complicated”.

Published on June 10, 2021

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