US President Donald Trump’s executive order in response to Twitter’s fact-checking labels on his tweets has reignited the debates around social media censorship, free speech for political leaders, and platform liability when it comes to insightful comments. Similar to Trump’s executive order to control social media platforms’ moderation decisions, India’s draft intermediary guidelines 2018 have also proposed government-approved censoring and monitoring of social media content. However, policy experts and tech platforms have argued that companies-led censoring and monitoring of user content will impact citizen’s freedom of speech and right to privacy — so do Trump’s rule and the backlash it is facing hold a lesson for India’s social media regulation?
Social media platforms have long enjoyed protection from being held liable for the content posted by their users. This has been fundamental to the growth of the sector as well as the openness. However, this comes with the downside of the unregulated spread of misinformation, fake news, misleading visuals, and hate speech.
Like Trump, many Indian political groups have regularly accused social platforms of curbing conservative voices. Just this month, India’s ruling party Bharatiya Janata Party (BJP) leader, Vinit Goenka alleged that Twitter was promoting terrorism through a few trending hashtags and said that the platform should be held responsible for its content just like media companies. This was not the first time that social media platforms’ liability and user traceability has been questioned in India.
In 2019, Twitter was alleged to have discriminated against right-wing opinions by a group closely affiliated with the BJP. This was followed up with a parliamentary committee summoning Twitter CEO for a hearing in February. One hearing turned into two hearings inviting Facebook and WhatsApp as well to discuss issues such as social media bias, citizen rights, and data privacy.
What India’s Draft Intermediary Guidelines Say
In December 2018, MeitY had proposed amendments to the IT Act, with an aim to curb the misuse of social media platforms and the spread of fake news. Among other things, the draft proposed that the intermediary will have to deploy technology-based automated tools for proactively identifying and removing or disabling public access to unlawful information or content.
It also required intermediaries to enable tracing out of the originator of information on its platform and share the information within 72 hours of government communication. Further, upon receiving knowledge about any objectionable content in the form of a court order, or on being notified by the appropriate government or its agency, the intermediary shall remove or disable access to unlawful content in less than 24 hours.
Intermediaries have so far been sheltered from direct scrutiny under the safe harbour provisions set out in section 79 of the IT Act. These provisions exempt intermediaries from liability for any third party information shared on its platform.
Industry Pushes Back
In 2019, Asia Internet Coalition which represents Facebook and Twitter strongly opposed the draft and said the Draft Rules are in violation with several principles upheld by the Supreme Court of India and the existing provisions of the IT Act.
“To ensure that companies in the Indian market enhance the services offered to users, any regulation affecting the privacy of users and their rights to exercise their freedom of speech on such platforms cannot be shadowed by additional, onerous obligations on intermediaries,” the coalition added.
However, Reliance Jio, had commented in favour of holding intermediaries liable. Jio said that social media platforms are an important stakeholder in the digital communication space of India and therefore it cannot evade the responsibility and accountability of the content shared on their platform. With Facebook’s recent investment in Jio platforms’, this stand put Jio and Facebook at opposite sides of this debate.
In July 2019 after the public consultations, the final guidelines were reported to include the amendment on intermediary traceability by government agencies but remove the proactive content monitoring and takedown mandate proposed in the draft of Information Technology Intermediaries Guidelines (Amendment) Rules, 2018. Later in January 2020, after asking the Supreme Court of India for more time to submit its final draft of the intermediary guidelines that it wishes to present in the parliament, the ministry of electronics and IT (MeitY), seems to have missed the deadline or simply neglected to submit the draft.
The government was meant to submit final intermediary guidelines on social media and online content regulation, on January 15, 2020, but the whole process got delayed without explanation. Without receiving an updated version, the Supreme Court is unlikely to be in a position to get clauses and provisions amended before the amended guidelines are tabled in the parliament.
Coronavirus has only intensified the risks of the tech policy limbo in India. MetaFact’s Sagar Kaul told Inc42 earlier this year that there’s been almost 30%-40% increase in fake news in India after the coronavirus outbreak as compared to the pre-corona times. Lack of a proper framework to govern the malice of this digital-first world makes India much more vulnerable to being influenced by western policies than ever.
Salman Waris, the managing partner of TechLegis Advocates and Solicitors, also noted in a recent interview with Mint, “In the Indian context, Trump’s actions might lead to the IT Ministry claiming it was justified in its proposed amendments to the intermediaries guidelines in order to prevent the spread of fake news, and may soon proceed with the proposal.”
Besides some tech startups, The Internet And Mobile Association Of India (IAMAI) had shared its concerns about the intermediary guidelines and said that it violates the right to privacy and burdens social media companies with additional spend. It further stated the rule will change the way social media companies monitor and take down content on the request of law enforcement agencies. Many lawyers, activists, and journalists believe that the government will use this to censor and control online speech.
Wikimedia Foundation, the nonprofit that hosts and operates Wikipedia, had written to IT minister Ravi Shankar Prasad expressing concerns over proposed data law. The issues raised include automated filtering of content, setting up a local entity and traceability of content under the proposed rules. In December 2019, Mozilla Foundation, a not-for-profit organisation which runs Firefox browser and other software, has initiated an online petition to request the Indian government to reconsider intermediary liabilities provisions.
Focus On WhatsApp Traceability
Alongside the intermediary rules, the Indian government met executives from WhatsApp multiple times seeking to implement traceability of messages, even though it meant violating end-to-end encryption policy of the social messaging service. The government’s concerns around WhatsApp stems from the fact that the huge amount of fake news and misinformation being spread on the platform had even led to violent mob lynchings across India in 2018.
In 2018, a PIL was filed by Antony Clement Rubin and Janani Krishnamurthy seeking a special order by the court to ‘declare the linking of Aadhaar or any one of the Government authorized identity proof as mandatory for the purpose of authentication while obtaining any email or user account’. Rubin and Krishnamurthy are animal activists who filed the petition after failing to identify the identity of a social media page who had cyberbullied them. Meanwhile, similar petitions around traceability were also filed in the Bombay, and Madhya Pradesh High Courts.
Even though the Madras High Court decided against linking Aadhaar with social media accounts, it ended up enlarging the scope of the writ petition to address the question of identifying originators of messages within the messaging platform.
Further, the court sought the assistance of Prof. V. Kamakoti, a professor at IIT-Madras, and also a former member of the Prime Minister’s scientific advisory committee on the technical feasibility of WhatsApp traceability. Professor Kamakoti proposed two options for WhatsApp to enable messages tracing without affecting its end-to-end encryption.
- WhatsApp could embed information in an open and visible format: Originator information is included along with each encrypted message. This means each recipient of a WhatsApp message or forward will get to know the identity of the person who originally sent the message.
- The information can be encrypted: While the originator information continues to travel with each message, the recipient is not able to view it, as the information remains encrypted. But, it can be revealed to law enforcement by WhatsApp, when and if demanded.
In response to the professor’s proposal, WhatsApp said that Kamakoti’s proposals will force WhatsApp to fundamentally change its platform and wholly undermine its end-to-end encryption as users would be afraid to freely express themselves if their private thoughts would forever be linked to their identities.
Meanwhile, Facebook approached the Supreme Court that all cases around the traceability issue should be moved to the Supreme Court and resolved together. In October 2019, the Supreme Court accepted Facebook’s plea and allowed the transfer of various petitions from high courts to the apex court. Following this, a bench of justices Deepak Gupta and Aniruddha Bose said the matter will be heard in January 2020 after the central government formulates new guidelines on intermediaries.