Intermediary Guidelines and Digital Media Ethics Code: Curtailing Online Freedom and Liberties

Posted on April 13, 2021

Authored by Vallari Dronamraju*

Image Source: Hudson Institute

Social media is a group of internet-based applications that build on the ideological and technological foundations of the internet and that allow the creation and exchange of user-generated content.[1] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules, 2021 (“Rules”) enacted on February 25, 2021, have had a significant impact on entities broadly classified as ‘intermediaries’ and ‘publishers’. We have previously examined the Rules here and here.

Intermediary liability stems from S. 79 of the Information Technology Act (“Act”), that exempts intermediaries from liability for third party content on their sites, as long as certain conditions are fulfilled. For an intermediary to claim immunity while discharging duties, it is essential that it observes the Rules that the Central Government specifically provides for, in terms of due diligence. An intermediary, thus, must not knowingly host information that is contrary to the said Rules and adhere to the due diligence requirements. With the onerous obligations and compliances under the new Rules, it is important to highlight the impact it may have on the rights and interests of the users. In this regard, this article analyses the key provisions of the new Rules and the impact of the same on the right to disseminate and access information on the internet.

Automated filtering

The requirement of automated filters to be deployed by ‘Significant Social Media Intermediaries’ (“SSMI”) to identify, moderate or remove ‘illegal’ content on any social media platform is a restriction on the constitutional guarantee of free speech and expression. Several tech giants across the globe have opposed such measures. Automated filtering may also result in pre-censorship and suppressing free speech before it is public. Further, intermediaries are also mandated to take down specific categories of content in 24 hours and share information with the law enforcement agencies within 72 hours. This, however, is not sufficient time to analyse requests, seek clarifications or remedies. It might create an incentive to takedown content and share user data without due process. These intermediaries are also to preserve content requested by law enforcement for at least 180 days. It contradicts the principle of “storage limitation” recommended by the Justice B.N. Sri Krishna Committee in the White paper on a Data Protection Framework for India.

Under the Rules, the SSMI is required to deploy automated tools or other mechanisms to identify information which is exactly identical in content to information that has been previously removed or access to which has been disabled on the computer resource or that depicts any act or simulation that is sexually explicit or depicts child abuse material.

Ways of expression on the internet

The internet is a very important tool for disseminating information and opinions, along with serving as a platform for disseminating unlawful speech. Abusive speech or expression, as a matter of common knowledge that is inherently likely to provoke violent reaction must be avoided. Incitement is the key to determining the constitutionality of restriction on free speech. The intent of freedom of speech has always been the right of equal access to mediums of expression in a multicultural country like India. However, it is imperative that a balance is created in order to restrict the grounds for interference under grounds protecting the sovereignty of the country. Under S. 69 of the Act, the Central Government has the power to intercept, monitor, decrypt or monitor any information generated, transmitted, or received. The intermediary that fails to co-operate with the government agency may be punished with imprisonment for a term of seven years and will be liable to a fine. The intermediary will need to remove or disable access to any unlawful information. It will also have to provide information or assistance to authorised government agency for investigations and prosecution of offences under any law.

In addition to this, under Rule 4(2), the SSMI must enable the identification of the first originator of the information as required by a competent authority, according to the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. In compliance with such an order, no SSMI must be required to disclose the contents of any electronic message or any other information in relation to its users. In instances of where the first originator located outside the territory of the country, the first originator shall be deemed to be the first originator of the information. Under circumstances of non-compliance with the provisions, the intermediary shall be liable for punishment under any law including the Act and the Indian Penal Code (“IPC”).

Freedom of speech

Human progress is impossible without freedom and it is not untrue that human progress is impossible without a measure of regulation and discipline. However, it is imperative that the freedom of speech is not exercised at the expense of the violation of other rights. Freedom of speech and expression are guaranteed by the Constitution under Article 19(1)(a) that allow citizens to express opinions and thoughts on publicly accessed platforms, that forms the essence of the constitution. It is the right to express one’s convictions and opinions freely by word of mouth, writing, printing, pictures for general discussion of public matters.

Article 19(2) of the Constitution provides for the grounds of reasonable restrictions that include the security of the state, friendly relations with foreign states, public order, decency, and morality. The freedom of speech must not be seen as the anti-thesis of security of state but as one of its key features. Moreover, for a successful democracy, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on public matters. The potential act and its effect on public tranquillity, may justify a restriction under Article 19(2). Diversity of ideas, views and ideologies are thus, the very essence of a people-oriented democracy.

As per the Rules, the measures taken by the intermediary (with respect to deployment of technology based measures to identify specified content) must be proportionate to the interests of free speech and expression. It is also pertinent to highlight the concept of intermediary liability and freedom of speech as discussed in the case of Shreya Singhal v. Union of India, where the court held that there were three fundamental concepts in understanding the freedom of expression which include discussion, advocacy, and incitement. The law can only curtail freedom only when a discussion or advocacy amounts to incitement. Furthermore, S. 66A was held capable of imposing chilling effect on the right of freedom of expression and was therein invalidated. The Act by itself, fails to define terms such as inconvenience or annoyance and a large amount of protected and innocent speech may be curtailed on the vague grounds envisaged in the now-repealed Section 66A.

Inappropriate content by users on social media

Content on the internet consists of sexually explicit, violent, or inappropriate elements that might affect the society at large. India tops the list in the number of users that accessing Youtube and other social media platforms. Further, YouTube has previously removed over one lakh videos for hate speech while more than 17,000 have been terminated. This comes with the increasing importance on the minds of the youth who have regular access to social media. Challenges like fake news, child sexual abuse material and drug trade on digital platforms have increased the need for effective implementation of regulations. Some internet platforms rely on age verification system’s but these may not always be foolproof. In attempts to avoid content that is not suitable for children, social network providers need to avoid falling into the trap of restricting the freedom of expression for other members of the public. However, this must not result in over-regulation that might leave a deleterious impact on the users right to privacy and free speech.

Blogs, websites, online discussion forums and other mediums of expression on the internet, have faced repercussions due to the opinions of several users. This calls for a systematic way of regulation that the Rules have tried to introduce by way of due diligence and a structured way of reporting of any cyber security incidents. The social media intermediary is also mandated to clearly identify the users as being advertised, marketed, sponsored, owned, or exclusively controlled to make it identifiable. An intermediary that engages in publishing of news and current affairs, must furnish the details of their user accounts on the services of the intermediary. Other intermediaries may also be ordered to comply with the Rules if it permits the publication or transmission of information in a manner that is harmful to the sovereignty of the country.

OTT platforms and regulations

The world has witnessed a spike in viewership with the increase in entertainment through over-the-top platforms (OTT). The Rules provide that the publishers of online curated content must exercise due caution and discretion while featuring activities, beliefs, practices, or views of any cultural or religious groups. For instance, video streaming mediums have stirred controversy for “hurting religious sentiments” with certain shows that were aired on their platforms. The Rules, describe the content and theme classification for online curated content and the target audience of the shows. All content that is published is categorised into ‘U’, ‘U/A 7+’, ‘U/A 13+’, ‘U/A 16+’ or ‘A’ (restricted to adults). It also elucidates the issues that may arise in varying degrees to all categories of the classification, that include discrimination, psychotropic substances, imitable behaviour and more.

Though films and web-series are forms of artistic expression under Article 19, there are also certain restrictions to keep in mind. Ss. 292-294 of the IPC prohibit the import, sale and distribution of obscene books and representation in any form. S. 295A of the IPC, criminalises deliberate and malicious outrage of religious feelings of any class, by insulting its religious beliefs. Furthermore, the freedom of speech and expression includes artistic speech consisting of paint, sing, dance, poetry, and literature. Poetic license and artistic freedom would not make a person immune from prosecution if the boundary is transgressed, making the piece of writing as obscene. It is an established principle that the freedom of artistic creation cannot be claimed where the work in question constitutes a debasement and debunking of an individual’s public standing.

Curbing of fake news

India does not have a substantive law that penalises fake news, and as the country is becoming increasingly digital, it is further difficult to confine the prohibition to a manageable and definite standard. Provisions in the IPC, however, penalise the acts of speech that may penalise the spread of fake news. There are approximately 53 crore WhatsApp, 41 crore Facebook users, 21 crore Instagram users and 1.75 crore Twitter users. A recent study by Microsoft has found that over 64% of Indians had encountered fake news online. 52% of English using internet users get their news via WhatsApp and Facebook. Messaging platforms are usually filled with fake news and disinformation that is aimed at influencing political choices made during the Indian elections. For instance, six months before the 2014 general elections in India, 62 people were killed in sectarian violence and 50,000 were displaced from their homes in the state of UP. Through investigations, it was discovered that a fake video that was shared on WhatsApp led to this sectarian violence and triggered mob violence. Further, smaller platforms such as Sharechat which has about 40 million users operate in 14 Indian languages and target first-time internet users and have several false claims and misinformation. A rising tide of nationalism is driving Indians to share fake news that leads to polarisation and mobilisation. To curb the menace of fake news, there are two new provisions in the IPC i.e., 153C that is to be added to prohibit incitement to hatred and a section 505A that prohibits speech that causes fear, alarm, or provocation of violence.

The Rules state that SSMI’s need to enable the identification of the first originator according to the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. SSMIs should strive to deploy automated tools to proactively identify information that depicts rape or related offences. WhatsApp here poses a unique problem given its encryption technology and the company’s vision for secure and private communication. An improvement in this regard, is the labelling of forwarded messages. New privacy settings also guarantee that one can be added to a group by contacts or by no-one at all. The rules do not authorise the discovery of content of messages but states the extent of double encryption. This may result in a potential breach of right of speech, and it will require updated information of each user in a manner that can be shared with the government.

In the case of Antony Clement Rubin v. Union of India, the Madras High Court observed that an intermediary must provide information or any assistance in tracing the originator of the message on any messaging platform. When transferred to the Supreme court, also popularly known as ‘WhatsApp traceability case’, the court observed that it is imperative to find the originators in content comprising of pornography, drugs and other issues that are in public interest. In a report with the expert opinion submitted to the Madras HC to trace originator of WhatsApp messages, IIT Madras professor, Dr. V. Kamakoti, filed an affidavit observing that the originating information of a WhatsApp message could be traced and suggested several other models that detailed the mode of transmission of the message. He further argued that WhatsApp cannot be focussed on privacy as it has allowed forwarding of messages. However, there are several opponents of this view with regard to the freedom of speech and expression and violation of the fundamental right to privacy of the concerned individuals. Considering the report, the Supreme Court observed that the technology is evolving, and it is imperative that concrete steps are taken in order to protect the rights of the public through the implementation of the guidelines.

Way forward

With the freedom of speech and expression, comes the responsible use of words and any form of medium that is allowing one to express thoughts and opinions. It is an established principle, that freedom does not confer an absolute right to speak or publish, without responsibility, and an unrestricted license that gives immunity for every possible use of language and punishment for the same.

It is imperative that reasonable restrictions are maintained for the freedom of speech and expression by users on social media platforms. The executive and judiciary exercise their powers in the implementation and interpretation of the law, in the regulation of free speech and expression in a way that upholds the constitutional values, integral to a multicultural country such as India.

*Vallari Dronamraju is an Editor at IntellecTech Law and a penultimate year law student at the National University of Advanced Legal Studies, Kochi with a keen interest in competition law, technology law and corporate law.

[1] Andreas Kaplan & Michael Haenlein, “Users of World, Unite! The Challenges and Opportunities of Social Media”, 53 Business Horizons, pp. 59-68 (2010).