Author: Shruti Maheshwari, III year of B.A. LL.B (Hons.) from National Law University, Jodhpur
Recently, Minister of Law & Justice and Information Technology, Ravi Shankar Prasad, slammed Twitter for its “double standards” while dealing with the incidents of attacks at the Capitol Hill in the US and the Red Fort in India. Further, Twitter’s non-compliance with the order of the Government to block certain accounts in light of Farmers’ Protest, again amplified the furore of the Government. In the contemporary world, the Tech Giants of Silicon Valley have wielded tremendous power to challenge a sovereign government; be it the controversy between the Australian Government and Facebook over the payment to news publishers or be it the suspension of Donald Trump’s account on Twitter.
Against this backdrop, come the new guidelines where there are on-going tussles between the social media platforms and governments of several countries including the US, Australia and India. Thereby, the recent Notification of the Information Technology (Intermediary Guidelines and Digital Media Ethics) Code 2021 [Hereinafter ‘Guidelines’] is a watershed step towards the regulation of Tech Giants of social media.
What are the New Guidelines and How it Affects Social Media Platforms?
Some of the essential features are:
The requirement of Due Diligence: The social media intermediaries are provided with legal immunity under Section 79 of the Information Technology Act, 2000[Hereinafter ‘IT Act’] for any third-party content hosted by them and reciprocally they are bound to comply with the rules laid down by the Government to be eligible for the immunity. However, the new Guidelines will take away this “safe harbour” if Tech Giants fail to comply with the norms of due diligence.
Grievance Redressal Mechanism: Next requirement set by the rules is the establishment of the Grievance Redressal Mechanism. The mechanism requires the presence of three officers, i.e., the Chief Compliance Officer who will be responsible for ensuring compliance with the IT Act and its rules. Secondly, there has to be a Nodal contact Person whose prime responsibility is to coordinate with the law enforcement agencies. Thirdly, the rules require the presence of a Residence Grievance Officer who will carry out the duties mentioned under this scheme of redressal.
Identification of Originator: Another significant change is the liability of intermediaries to reveal the first originator of the message provided the said message is mischievous. This includes any message which is related to “the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or public order” or “of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material”.Further, the intermediaries may be required to remove such content.
Fair Hearing: Many users have been frustrated with the sudden removal of their accounts by these platforms without citing any adequate reason. Fortunately, the new Guidelines will help prevent this menace. The Guidelines now require the social media intermediaries to provide a fair hearing before the suspension of the accounts.
These are some of the significant changes in the rules. Overall it bolsters the need for transparency and accountability of the social media Giants. However, the traceability requirement as suggested by some commentators will impinge on the end-to-end encrypted conversations and thus capable of undermining the private space of citizens.
What is Happening in Australia?
Similar to India, the battle has ensued between the Australian Government and the Tech Giants including Google and Facebook. The Australian Government came up with a new law, the News Media Bargaining Code, which obliges social media platforms, particularly Facebook and Google, to pay the news publishers for their content which is shared on these platforms. Initially, Google retaliated and threatened to leave the country. However, subsequently reconciled with the Government after realising that rival Microsoft may step in otherwise. On the other hand, Facebook remained adamant for a longer time and went to the extent of removing the news pages. Though later an agreement between the Government and Facebook was reached and pages were restored.
The Wider Picture of These Conflict of Interests
The Tech Giants with millions or maybe billions of users within their ambit – tracing their every click – command a huge potential to mobilise users towards a particular opinion, for instance misreporting at the initial days of a pandemic or influencing electoral results. In this context, it becomes essential for the Government to regulate their activities which goes against the public interest. As per some commentators, even the spat between the Australian Government and Facebook is not just limited to payment. It is more than that. With access to the data and content of the users, Facebook wants to retain its power of influencing public discourse as per its whims and fancies.
The new Guidelines of the Indian Government will surely serve the purpose of prevention of abuse of the powers of Big Giants. However, this accountability of Tech giants comes with a cost. Under the garb of security of the state or any other head, the Government may ask for the removal of any content which goes against their narrative. Thereby, the rival narrative which may be in the interest of the public can easily be struck down. The need is to strike a balance in the best interest of the public which gives them a leeway to form an opinion themselves.
The above-stated battles between the democratic Governments and the Tech Giants hint at a larger picture with wide implications. The Big Techs today have control over the three most crucial means of the contemporary world – data, attention and popular narrative. Hence, the path to breaking the monopoly of these Tech Giants through rules and regulations is the need of the hour. At the same time, the sovereign authorities should also ensure that such rules do not turn into a political tool. Therefore, imbibing the Middle Path philosophy of Buddhism can ensure the best interest of the public.