This article is written by Ayasha Kedia, LLB student of K.C Law College during her internship with LeDroit India.
In just over a decade, social media in Our country, has evolved from a fun sidekick to a completely integrated element of practically every facet of many people’s everyday lives. Social Media is excessively used for not just social networking and building connections but also for extracting information and news from all around the world, it helps bring new ideas, and people learn from and shape their own perspectives reading the many sides of a story on social media platforms, and therefore it becomes very important that social media platforms be regulated timely and efficiently.
Liberal democracies are responding to this dilemma in two ways, both of which rely on existing tools to address a situation for which they were not built. One strategy is to regulate various areas of the information sphere, particularly through surveillance, speech restrictions, and rights protection. However, giving governments more ability to increase surveillance and limit free expression leads to politicization, partisanship, and unfairness.
Definition of social media LAW
Social media law is a developing area of the law that includes both criminal and civil aspects. Those that protect or ban the uploading of content, as well as those that broaden or restrict employee privacy rights, are examples of social media regulations.
Generally, it covers legal issues related to user-generated content and the online sites that host or transmit it. Some of the special legal concerns raised by social media include privacy, including the rights of both social media users and third parties (for example, when photos are posted and used online without the permission of the people depicted); defamation; advertising law; and intellectual property (IP) law. Material shared on social media can sometimes infringe on a copyright, a trademark or other IP rights.
Despite the fact that social media rules are constantly expanding and changing, there are a few well-established laws that help to define the landscape. The different acts and laws that usually relate to the world of social media:
- Anti-SLAPP statutes give protection for defendants in frivolous lawsuits launched to stifle free expression.
- Discrimination based on disability is prohibited under the Americans with Disabilities Act.
- In internet, the Communications Decency Act governs indecency and obscenity.
- The Computer Fraud and Abuse Act extends the common law trespass tort to the virtual world of computers.
- The Digital Millennium Copyright Act limits liability for service providers and establishes exclusionary rights for works of authorship.
- The Children’s online Privacy Protection Act (COPPA) places restrictions on the gathering of personal information from children under the age 0f 13.
- Interception of “any wire, oral, or electronic communication” is prohibited under the Electronic Communications Privacy Act (“ECPA”).
- The Federal Trade Commission (“FTC”) Act authorizes the FTC to investigate unfair trade practices.
- Trademarks and service marks are protected under the Lanham Act.
- Employees’ rights to participate in and engage in concerted activity for better working conditions are guaranteed by the National Labor Relations Act.
- Entities are prohibited from accessing and retaining some private information under the Stored Communications Act (“SCA”).
SOCIAL MEDIA LAW IN INDIA
BACKGROUD
Social media law India is regulated by the Information Technology Act(IT Act) which was enacted in the year 2000 to regulate, control and deal with the issues arising out of the IT. Social networking media is an “intermediary” within the meaning of Indian information technology act 2000 (IT Act 2000). Thus, social networking sites in India are liable for various acts or omissions that are punishable under the laws of India.
Section 79 of the IT Act creates a so-called “safe harbor” for intermediaries who host user-generated content, exempting them from liability for the acts of users on their platform if they follow government rules. In order to be free from liability under Section 79 of the IT Act, an Intermediary must follow specific rules. The Intermediary must remove any information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, podophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, harm minors in any way, or otherwise not launderable, according to the guidelines.
The Informati0n Technology (Intermediaries Guidelines) Rules, 2011, back then provided the existing guidelines that intermediaries must follow, although the government had been since long considering revisions to these guidelines since December 2018. So prior the enactment of Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, the law or regulation in place was Information Technology (Intermediaries Guidelines) Rules, 2011.
In 2015, the landmark judgment of Shreya Singal v. Union of India, the Court invalidated Section 66A of IT Act in its entirety as it violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India and thereby uphold the right to free speech and expression in the recent times. Section 66A of the IT Act is solely concerned with and regulates social media content. It forbids the transmission of any offensive video, audio, or text message, as well as any recorded information. This also includes any material or electronic message that is known to be false but is sent with the intent to annoy, injure, or insult others. This is done with the intent of committing a crime and instilling enmity in the public. It may also lead to a person’s deception.
Because of the numerous arrests made under this section, Section 66A has perhaps attracted the most media attention. This clause made it illegal to send an insulting message over a computer resource. The most serious worry in this regard was the provision’s extraordinarily broad and vague meaning, which might have covered anything that was offensive, menacing, caused discomfort or inconvenience, insults, generated enmity, animosity, or ill-will, and soon. Three years in prison was the penalty for such an offence.
Apart from sections 79 and 66A, which has since been abolished, Section 69A 0f the act also deals with social media platforms and allows the government to ban public access to any content for a variety of reasons. If an intermediary fails to follow instructions to censor content, they might face up to seven years in prison. This clause allows the government to restrict any content it deems appropriate, as long as it meets certain criteria. It has been applied with varied results. While there are times when content must be censored (for example, one of the sparks for the recent communal violence in Uttar Pradesh was the distribution through Facebook of a fake video purporting to show violence against the majority community), practice shows that government directives are often vague (resulting in entire domains and websites being blocked). The broad and imprecise character of the conditions that must be met before this power can be invoked is additional cause for concern.
Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
Coming back to the new guidelines now, one of the problematic issues presented by MeitY in the December 2018 version of the draft Rules, and which also appears in the most recent 2021 version of the draft rules, concerns the traceability of information originators on the internet. In Antony Clement Rubin v. Union 0f India, the Supreme Court was discussing the issue of the traceability of information originators on messaging systems. This lawsuit began as a public interest litigation (PIL) filed in the Madras High Court, requesting that Aadhaar be linked to social media accounts. The focus switched to traceability of originators of information on end-to-end encrypted platforms like WhatsApp during hearings before the Madras High Court, and the matter was ultimately transferred to the Supreme Court.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, appear to have evolved from the Draft Intermediaries Rules, 2018 between December 2018 and February 2021. The Ministry of Electronics and Information Technology (MeitY) published the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 in February. The new laws were given a three-month grace period for social media intermediaries’ to comply.
The IT Rules 2021 intend to provide ordinary users of social media platforms and over-the-top (OTT) platforms with a system for grievance redress and speedy resolution through the employment of a Grievance Redressal officer (GRO) who must be a resident of India. Special attention has been paid to protecting women and children from sexual assaults, fake news, and other forms of social media abuse. In the event of an offence involving India’s sovereignty and integrity, the “initial creator of the information” must be identified. A Chief Compliance officer, who must be a resident of India, must also be selected, and this person would be responsible for ensuring that the Act and Rules are followed. A monthly compliance report mentioning the details of complaints received and action taken on the complaints would be necessary.
On the other hand, OTT platforms, online news, and digital media businesses would be required to adhere to a Code of Ethics. Under the new laws, OTT platforms would be referred to as “publishers of online curated content.” They’d have to divide the content into five groups based on age, and employ parental controls for everyone over the age of 13. For content classed as ‘Adult,’ they must also provide age verification procedures. A three-tiered grievance resolution system has been established. The appointment of a GRO, self-regulatory entities registered with the Ministry of Information and Broadcasting (MIB) too verse the Code of Ethics, and a Charter for the self-regulating bodies developed by MIB are all part of this.
- Monthly Reports: The SSMIs must also publish a monthly report detailing the number of complaints received and the actions done in response to those complaints.
- Grievance Redressal Mechanism: According to the standards, social media platforms must have a grievance redressal mechanism in place so that any content uploaded that violates public order or is not regulatory can be reported to the Grievance Redressal 0fficer. Within 24 hours, the officer must recognize the complaint and address it within 15 days. The requirement is to settle the complaint within 24 hours in circumstances directly related to crime against women.
- Identifying Message originators: Under the new guidelines, services like WhatsApp, Signal, and Telegram must assist in identifying “originators” of “unlawful” messages, and social media networks must remove such messages within a certain time frame.
Noncompliance with these requirements may result in SSMIs losing the “safe harbor” protection provided by Section 79 of the IT Act.
It protects users from civil and criminal liability for content uploaded on the social media platform by third parties.
IMPLICATIONS
The problem with the ruling is that social media companies with large user bases in India will have to drastically change their business models to comply with the Indian government’s new mandates under Section 79 of the Information Technology Act, which include the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
End-to-end encryption will almost certainly have to be diluted in messaging apps like WhatsApp or Signal in order to track down the “initial originator” of flagged messages. Platforms such as Facebook will have to design a new interface for India that would allow users to verify users through authorized know-your-customer (KYC) processes and display a verification tag for those who request it. While WhatsApp will have to figure out how to display the verification tag, Twitter will have to make the verified blue tick option available to everyone who requests it.
There will also be Technological Hurdles with Respect to Traceability. The elements in the new legislation that oblige them to identify traceability when required to do so by authorities have caused concern among social media businesses such as WhatsApp. They argue that this could lead to the decryption of end-to-end encryption, which could jeopardies users’ privacy. The administration, on the other hand, has indicated that traceability will be required only in the event of “extremely serious 0ffences” that endanger India’s sovereignty and integrity. It could also be done without compromising the end-to-end encryption. Companies, on the other hand, will be responsible for developing a technology solution to this.
The concern relating to breach of Privacy- Many services (Whatsapp, Signal, Telegram, and others) save minimum user data for electronic information exchange and employ end-to-end encryption to serve users with trust, security, and privacy. Millions of Indians use these to protect themselves from identity theft, code injection assaults, and other risks. Encryption is becoming increasingly vital as more aspects of our life require our personal data which is increasingly being pooled and analyzed on a scale never before imaginable. The Justice Sri Krishna Committee on Data Protection has already chastised the government for requiring inadequate encryption levels in license agreements with telecom service providers, claiming that this “poses a threat to the safety and security of data principals’ personal data.”
This requirement for traceability has significant implications for everyday users of online services, and it should be considered in conjunction with the MHA notification, which activates the IT (Procedure and Safeguards for Interception, Monitoring, and Decryption 0f Information) Rules, 2009, which give the power to direct “decryption.” We lack sufficient legislative monitoring or judicial review of surveillance, and the latest guidelines, would be a massive increase of the government’s power over ordinary persons, some who oppose these rules say, it would be disturbingly similar to China’s banning and breaking of user encryption to spy on its populati0n.
Rule 5(2), insofar as it demands changes to the design of encrypted platforms in order to enable traceability, is outside the scope of the parent provision, Section 79 0f the IT Act. It’s worth noting that the authority to impose encryption standards and procedures stems from Section 84A of the IT Act, not Section 79, which is a safe harbor provision. Section 84A also gives the Central Government the authority to establish encryption modes and procedures for the purpose 0f “securing the electronic medium and promoting e-governance and e-commerce.” Any attempts to weaken encryption in order to permit traceability would fall short of the goal of providing secure electronic communication.
CONCLUSION
Any democracy’s foundational precept is freedom of speech and expression. There is no such thing as absolute or unlimited freedom. Since the promulgation of the Constitution, striking the correct balance between fundamental rights and determining the rationality of a restriction has been an ongoing endeavor. The discussion has now moved to the digital realm.
The IT Rules 2021, according to the government, seek to address concerns of the citizens without infringing on their privacy and personal liberties, while maintaining digital sovereignty at the same time, while some organizations believe it’s an infringement of right to privacy and freedom of speech and expression, perhaps only with time and over time will we realize which one of the aforementioned is true or stands true.
In the end, the standards are about the end users of social media platforms, and the latter’s growth is dependent on the former. The protection of end users’ interests must take precedence, and laws and regulations must not be drafted in a way that contradicts their fundamental rights. Furthermore, there is a tremendous need for law and order to be in place to curb misleading information while also ensuring that citizen’s privacy is not jeopardized.
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