It really warms the innermost cockles of my heart to see that the Centre has in a bold, balanced and brilliant move weeks after a long spat with Twitter very rightly decided to take the right course of action of tightening of rules governing social media and streaming companies, requiring them to take down contentious content quicker, appoint grievance redressal officers and assist probe.
This comes in the backdrop of so many anti-India messages being propagated on Whatsapp, Twitter and other social media platforms which were less against farm laws but more against the very unity and integrity of India by espousing a separate nation for Sikhs termed as 'Khalistan'. How can any self respecting nation ever tolerate this brazen, open and completely anti-India activity to be carried on so brazenly in social media without being held liable to anyone? So the new rules made by Centre are a dire necessity to protect citizens privacy, security and our national interests also!
Needless to say, when there are rules for news channels and for newspapers then why should the social media and news media also not be held accountable? It also cannot be discounted that while citing several Supreme Court judgments, the Ministry of Electronics and Information Technology has said that since the highest court of the land had placed a responsibility upon it to come out with a regime on data protection and privacy, which would limit the ability of entities such as Whatsapp to issue privacy policies which do not align with appropriate standards of security and data protection, Whatsapp must be stopped from rolling out the services. It is therefore in the fitness of things that Centre has after considering the pros and cons decided to finally take the bull by the horns! There is no reason why this should not be appreciated, applauded and admired in no uncertain terms.
After all, how can we be oblivious of the irrefutable fact that serious concerns have been raised about abuse of platform in social media and news media for airing anti-India views in Supreme Court as also in Parliament itself? We all know too well that just recently on February 15, 2021, the Supreme Court Bench comprising of Chief Justice Sharad Arvind Bobde and Justice AS Bopanna and Justice V Ramasubramanian had agreed to examine the new privacy policy of Whatsapp under which it had allegedly planned to share the data of its users with Facebook and other companies. So we finally see that for social media platforms, the draft titled 'Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021' has been notified replacing the moribund and outdated previous Code from 2011 that will now govern online content which includes allowing users to dispute action taken against them by social media intermediaries such as Facebook and Twitter and others and hold social media, news media and other companies accountable for misuse and abuse. This will also obligate the big tech platforms to constitute stronger grievance redressal mechanisms and appoint executives to coordinate with law enforcement in India.
Truth be told, these rules very rightly makes it mandatory to identify the 'first originator' of the content that authorities consider anti-national. It is good to see that for social media platforms like Twitter, Facebook, etc the guidelines essentially remove the safe harbor provided to these companies - it wrongly limited their liability over content that users posted on their platforms - if the platforms do not comply with due diligence norms. The rules also call for a three-tier regulation mechanism for over-the-top (OTT) platforms like Netflix, YouTube etc and require them to self-classify their content into five categories based on age suitability.
It must be mentioned here that online curated content that is suitable for children and for people of all ages shall be classified as U, and content that is suitable for persons aged 7 years and older and which can be viewed by a person under the age of 7 years with parental guidance, shall be classified as U/A7+ rating. Similarly, the content that is suitable for persons aged 13 years and above and can be viewed by a person under the age of 13 years with parental guidance shall be classified as U/A13+ rating. Also, content which is suitable for persons aged 16 years and above, and can be viewed by a person under the age of 16 years with parental guidance shall be classified as U/A16+ rating.
It also deserves to be mentioned that online curated content which is restricted to adults shall be classified as A rating. Platforms would be required to implement parental locks for content classified as U/A13+ or higher, and reliable age verification mechanisms for content that is classified as A. Very rightly so!
Simply put, in a counter affidavit in the Delhi High Court while asking the Delhi High Court to step in and restrain Whatsapp from rolling out its new privacy policy, the IT Ministry has listed five major violations of the current IT rules that the new privacy policy of WhatsApp if rolled out could entail. The IT Ministry revealed in its affidavit that the first is that WhatsApp failed to specify the type of sensitive data being collected by it which is a violation of Rule 4(1) of the IT Rules of 2011. Rule 4(1)(ii) says that any corporate or person who collects, receives, stores, deals or handles information shall provide a privacy policy for handling of or dealing in personal information including sensitive personal data of information and also specify the types of sensitive data being collected.
Furthermore, the IT Ministry said that the second violation was with respect to collection of information. Rule 5(3) of the IT Rules says that any person or corporate collecting information shall notify the user if it is collecting any sensitive information, the purpose for which it is being collected, and the intended recipients of the said information. In the new privacy policy, WhatsApp has also failed to provide the user an option to review or amend the users information being collected for it.
Going ahead, the IT Ministry also pointed out in the affidavit that:
The privacy policy is completely silent on correction/amendment of information. It appears to provide an option to 'further manage, change, limit, or delete your information' of the policy, but upon close perusal, it is apparent that this ability is limited to a user's profile, name, picture, mobile number, and the 'about' information. It violated Rule 5(6) of the IT Rules.
Apart from these, the new WhatsApp privacy policy, also fails to provide users an option to withdraw consent on data sharing retrospectively, and fails to guarantee non-disclosure by third parties, which violate Rule 5(7) and Rule 6(4) of the IT Rules of 2011. Rule 6(4) prohibits the disclosure of data received by a third party from a body corporate – WhatsApp in this case – and any policy that provides the scope for such further disclosure is to be seen as non-compliant. When WhatsApp shares data with a third party service, the government has said no further disclosure is permitted. But the reply adds, privacy policy of WhatsApp explicitly abdicates the obligation. How can this be allowed? Therefore Centre was bound to bring in the new rules!
In short, Centre says WhatsApp's new privacy policy fails to:
- Specify the types of sensitive personal data being collected.
- Notify users about the details of sensitive personal information collected.
- Provide an option to review or amend information.
- Give users the option to withdraw consent retrospectively.
- Guarantee further non-disclosure of data by third parties.
Of course, eminent experts have welcomed the government stand and said that it was a unique decision. Pavan Duggal who is an eminent advocate and has specialized in cyber law and e-commerce law remarked rightly that:
WhatsApp uploaded privacy policy, from the perspective of a user, is a chaotic indication to disaster. It is stripping an individual from his right to privacy. Till now, the information was being shared only with the Facebook Group of companies, but now the data will also be shared with third parties and entities whom you have never had a relationship. He also added that:
It is heartening to see the stand of the government because normally, they don't take such stands. But here the contraventions are so deliberate and intentional, that the government has no choice but to take this stand because it has to protect the privacy of the citizens. Also, the government can take action against WhatsApp under the new IT rules brought on February 25.
It would be pertinent to mention here that Ravi Shankar Prasad who is the Union Minister for Electronics and Information Technology very rightly pointed out that:
The rules establish a soft touch, self-regulatory architecture and a Code of Ethics and a three-tier grievance redressal mechanism for news publishers and OTT Platforms and digital media. He also clarified in no uncertain terms that social media intermediaries are welcome to do business in India and while the government welcomes dissent, abuse of social media has to be curbed. Also, Union Minister of Information and Broadcasting (I&B) Prakash Javadekar very rightly said that , A free press symbolises the spirit of democracy, but no one should be allowed to spread fake news. He also hastened to rightly add that while legacy media were governed by Press Council of India rules, there has been no such regulations for online media, stressing the need for a level playing field. No denying it!
What's more, beyond streaming and messaging, the Code will also set guidelines for digital publishers of news and current affairs content requiring them to disclose their ownership and other information. Ravi Shankar Prasad rightly said that the Code was needed to make social media and OTT companies accountable for abuse.
It must be borne in mind that at a press conference, Union Law & IT Minister Ravi Shankar Prasad had cited a 2018 Supreme Court observation and also a 2019 Supreme Court order in addition to discussion in Rajya Sabha which took place once in 2018 and then through a report laid by a Committee in 2020 to finally press ahead for the dire need to come up with rules to empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights. It also cannot be overlooked that the government has not done it in a hurry as an overnight exercise but rather it has been first discussed, debated and deliberated upon each and every aspect of it for over three years. For this Centre has to be applauded in no uncertain terms.
Not just this, Centre as revealed by a statement by the Ministry of Information and Broadcasting said that it held consultations in Delhi, Mumbai and Chennai over the past one-and-a-half years wherein OTT operators had been urged to develop a self-regulatory mechanism. The statement also added that:
The government also studied the regulatory models followed in other countries including Singapore, Australia, EU and UK and has gathered that most of them either have an institutional mechanism to regulate digital content or are in the process of setting-up one. Very rightly so!
To put things in perspective, the rules are definitely users friendly as they seek to empower users by mandating the intermediaries which includes social media ones, to establish a grievance redressal mechanism. A Grievance Officer appointed for the purpose shall acknowledge the complaint within 24 hours and resolve it within fifteen days. Also, social media platforms on being asked by court or government will be required to disclose the first originator of the mischievous information that undermines the sovereignty of India, security of the state or public order which till now they were not obliged to disclose! This has to be welcomed in no uncertain terms!
As it turned out, the government also made it clear that:
The rules will come in effect from the date of their publication in the gazette except for the additional due diligence for significant social media intermediaries, which shall come in effect three months after publication of these rules.
Of course, it has been rightly reported that social media companies need to appoint officers who will be responsible for complying with content moderation orders and both they and streaming service providers will be brought under a three-tier regulatory framework, according to the proposed new rules that will cover high profile media companies such as Facebook and OTTs such as Netflix. Apart from this, it has already been stated above that these platforms will have to carry ratings such as (U)Universal or (Adult) – something they are not required to do currently. This is definitely a good development.
No doubt, the final trigger for pushing ahead with these guidelines came after it was reported that more than 300 to 400 anti-India messages were sent from Pakistan alone and about 1500 from other countries to incite violence and which we saw culminating in the most infamous and worst unprecedented violence in Red Fort on January 26 due to which Centre and Twitter were deeply embroiled in a huge spat over the removal of certain accounts from social media platform but which was not complied with by them accordingly and it was after huge pressure that Twitter initially while refusing to remove allegedly inflammatory tweets and hashtags supporting farmer protests finally agreed to withdraw them! It must be noted that in the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, the government cited powers provided to it under Section 87 of the Information Technology Act, 2000. This Section 87 allows the government to make rules to carry out the provisions of the law by notification in the Official Gazette and in the Electronic Gazette. It also cannot be ignored that Section 69 of the IT Act, 2000, allows the Centre to block public access to an intermediary in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.
Be it noted, the policy which has been notified on evening of February 25 also brings digital news publishers under the ambit of Section 69(A) of the Information Technology Act which empowers the government to order the blocking of access to content that is considered a threat to public order. It is true that the new rules take effect immediately but it is equally true that significant social media providers (based on number of users) will get three months before they need to start complying. We need to pay attention here to this vital fact that an authorized officer from the I&B Ministry who will head an Inter-Ministerial Committee at the apex of the self-regulatory system can also issue this order under emergency circumstances where the companies will not be given a chance to offer an explanation. The Committee will have to meet within 48 hours to ratify the emergency block.
As we see, what is capturing maximum eyeballs is the commendable rules that lay down 10 categories of content that the social media platform should not host. These include content that threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any foreign States; is defamatory, obscene, pornographic, paedophilic, invasive of another privacy, including bodily privacy; insulting or harassing on the basis of gender; libelous, racially or ethnically objectionable; relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws of India, etc. It is also really good to note that the rules stipulate that upon receipt of information about the platform hosting prohibited content from a court or the appropriate government agency, it should remove the said content most promptly within 36 hours.
It has to be said with a big smile on face that Union Law Minister Ravi Shankar Prasad was fully right when he underscored that the platforms cannot follow double standards when it comes to different countries. He rightly said that, There can't be a double standard for Capitol Hill and Red Fort violence. We all saw how all human rights activists all over the world condemned the violence by supporters of former US President Donald Trump but those very same activists start questioning Indian government itself when it comes to Red Fort violence even though no force was used against those vandalisers who never deserved so much of kid glove treatment! This is what pinches us most as an Indian! This is what every Indian like me feels that this is completely unacceptable and India cannot take all this lying down which alone necessitates this new law!
It is a no-brainer that what Centre has done now was the crying need of the hour also! Now the executives of intermediaries which fail to act on an order issued by the government citing threat to sovereignty or integrity, defence, security of the state or public order, can be jailed for up to a period of seven years under Section 69 of the IT Act. The Internet and Mobile Association of India (IAMAI) whose members include Amazon Prime, Netflix, Hotstar, Facebook and Twitter very rightly welcomed the announcement of the framework. It said in a statement that:
IAMAI has welcomed the much awaited Intermediary Guidelines 2021. The guidelines, focused primarily on consumer complaints, will help users of online content and social media resolve their complaints in a process oriented manner.
To say the least, a Facebook spokesperson said that:
We have always been clear as a company that we welcome regulations that set guidelines for addressing today's toughest challenges on the Internet. Facebook is committed to people's ability to freely and safely express themselves on our platforms. The spokesperson for Facebook also added that:
We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms. We will continue to work to ensure that our platforms play an enabling role in fuelling the exciting digital transformation of India.
On balance, it is high time and now Opposition parties too must stop smelling fishy on whatever government does and applaud it in totality as those big Companies like Facebook and Twitter among others have themselves welcomed it sincerely even though it is they themselves who will now be subjected to the strictest scrutiny wherever the matter involves our national security and honour of the nation or compromises with the privacy of an individual in any manner! It cannot be lightly dismissed that India has 53 crore WhatsApp users, 44.8 crore You Tube users, 41 crore Facebook users, 21 crore Instagram users and 1.75 crore are on Twitter! So regulation over all these big companies was certainly needed also!
It is a no-brainer that what Centre has done is a watershed moment and it must be welcomed with both arms! Centre rightly cited the 2011 IT Act rules to contend that the updated privacy policy of WhatsApp fails to specify the types of sensitive personal data being collected and with whom the information was being shared. All the big Companies who are operating social media and news media like WhatsApp, Facebook, You Tube among others will now be held accountable and answerable for what they publish and propagate and not just escape away conveniently without any accountability with impunity as most unfortunately we had been seeing until now! This was the crying need of the hour also and it is in the paramount national interest also!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.
