Wild Wild Web: Moving towards an open and safer Cyberspace

Recently the Ministry of Electronics and Information Technology published a notification on Information Technology Intermediary Guidelines and Digital Media Ethics Code aimed at increasing accountability on social media platforms.

The reasoning behind the Guidelines arise from multiple orders and observations/  orders / reports including the Calling Attention Motion on 'Misuse of Social Media platforms and spreading of fake news' in the Rajya Sabha on July 26, 2018, the Hon'ble Supreme Court's order (Prajjawala  case) of 11^th Dec., 2018 which observed that the Government should frame guidelines to eliminate child pornography, rape related content etc. for websites, platforms and digital applications; the Hon'ble Supreme Court order of 24^th September, 2019 directing the Ministry of Electronics & Information Technology to provide the timeline in respect of progress made. Further, a report of the Ad-hoc committee of the Rajya Sabha dated 3^rd Feb, 2020 brought to light the issue of pornography on social media and its effect on children and society as a whole.

 Some portals, which publish analysis about social media platforms and which have not been disputed, have reported the following numbers as user base of major social media platforms in India:

• WhatsApp users: 53 Crore
• YouTube users: 44.8 Crore
• Facebook users: 41 Crore
• Instagram users: 21 Crore
• Twitter users: 1.75 Crore

The Government studied the models 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.

Who or What is a (Social-Media) Intermediary?

 “Social Media Intermediaries” (SMIs) i.e., are digital ‘platforms’ which allow online interaction between users allowing them to create and share content. This includes platforms such as Twitter, Instagram, Whatsapp, Linkedin, Telegram, Facebook, Snapchat.

Content Regulation

SMIs will need to a) specify content categories that are not allowed to be uploaded or shared as well as b) periodically informing the users of its rules, regulations, privacy policy etc. SMIs will be empowered to act on cases of non-compliance by users by terminating access of a user & removing non-compliant information. The code places emphasis on the responsibility of the SMI to act to protect women & children from sexual offences, fake news and misuse of social media. To enable investigation of violations SMIs shall preserve information that has been disabled or banned by keeping records for 180 days or longer and on receiving orders from government agencies seeking information shall provide information they have access to.

Grievance and Redressal

The Code envisages the creation of Grievance & Compliance Officers to acknowledge and dispose of complaints with a specific time limit within which period action will be taken. In cases where the number of users are above a certain threshold a Chief Compliance Officer, Nodal Contact person Resident Grievance Officer residing in India will be appointed by SMIs for coordination with law enforcement agencies. 

Messages Identification

One of the important functions of significant SMIs providing messaging services, such as Whatsapp, Meta (erstwhile Facebook) Messenger, Telegram is to identify the ‘first originator’ of information within India. The need for “Traceability” on end-to-end encryptions is a step so as to combat fake news and propaganda creation. SMIs will also be required to use filtering tools to delete undesirable, anti-social, illegal and unlawful content depicting child pornography and sexual violence and take action on grounds relating to national security, public order and incitement to commit certain offences.

Digital Media Publication

News and current affairs SMIs content will be required to furnish the details of user accounts on the services of such intermediary to the Government agencies if and when required.

Three Tier Grievance Redressal

A Three Tier grievance redressal system will address grievances in relation to the violation of the code of ethics with Level l - consisting of Self-regulation by publishers themselves, Level Il - self regulation by self-regulating bodies of publishers or their associations, and Level 3 – Oversight mechanism by the Central Government. 

Content Publishers

India is one of the world’s fastest growing OTT markets. However, so far OTT does not have any regulation unlike Television or Cinema. Legislations regarding OTT video streaming sector in India will regulate the growing OTT industry which functioned without any regulation or guidance. Publishers shall publish a monthly compliance report with details of complaints received and action taken. A publisher shall make full disclosure of grievances received by as well as the action taken. The publisher will be required to preserve records of content for a minimum of 60 days and make it available to the self-regulating body or any other Government agency.

Content Classification

OTT platforms i.e. ‘publishers of online curated content’, online news and digital media entities would need to follow a Code of Ethics. They also need provisions for “Parental locks” as well as age verification mechanisms. The Content shall be classified on the basis of i) discrimination (ii) Psychotropic substances, liquor, smoking, and tobacco (iii) imitable behavior (iv) Language (v) nudity (vi) sex (vii) violence. OTT and digital news platforms will be obliged to not publish content prohibited by law and be sensitive while portraying activities, practices or views of any racial or religious nature.  This is a progressive attempt to regulate classification of films and other formats including web series based on the nature of their content.

Conclusion

In the right hands this will be a game changer for social media, both for Platforms as well as users as more people are now using the internet for daily interactions with other individuals. A clear message is being relayed to all parties that the Internet should be Open, Safe & Accountable and that SMIs providing services in India have to comply with laws and rules of the country in letter and spirit. There is an urgent need to remove fake or harmful content quickly when reported as well as a need to provide users opportunities to respond in cases where innocent users are being targeted but most importantly, SMIs in India can no longer claim impunity from the law and shelter agents of chaos.

The article has been written by Siddharth Chandrashekhar, Advocate & Panel Counsel CBIC