By Fen Mathew
“All citizens have the right to freedom of speech and expression”– states Article 19 (1)(a) of the Constitution of India.
India is a democratic country and freedom of speech and to express oneself is one of the most important fundamental rights that has been enshrined in the Indian Constitution and has been used by people many times to voice their concern against the policies and practices of the Indian government.
In the present scenario, the liberal part of the Indian population has taken over various social media platforms such as Twitter, Facebook, Instagram or has directed and presented their political ideas through OTT platforms such as Netflix, Amazon Prime, Hotstar, etc.
The increasing criticism has forced the government to curve the freedom of people by limiting the rights of tech companies bringing up a conflict of interest between them.
The conflict between the Indian government and the tech giants such as Facebook, Instagram, WhatsApp, and OTT companies such as Netflix, amazon prime has sparked debates and criticism against the government passing media rules that let them control the content that can be used and viewed by the customers.
Multinational companies are not inclined to abide by the rules as it will affect the media content aired by them and increases the liabilities on their shoulders.
Thus this article deals with the conflict of these companies and the Indian Government.
What is the Conflict?
This dispute between the government and the tech giants has been going on for a very long time and the implementation of new media rules was triggered when Twitter refused to abide by an order of the Delhi High Court during farmer protests in India.
The government is advocating the rules by stating that it will prevent the spread of misinformation and rumours, which often create tension and threat to the integrity of India.
These rules have been under framework since 2018 and they can help the government to control the policies and dealing of America’s biggest tech companies.
Conflict of Interest?
The government and the companies are fighting for power that they can get from control over the information. The battle between them is to control information which is not just the message but also the medium and therefore gaining power and in the case of companies, also gaining profit.
Many large technologies still earn their revenues bases on a traditional media model where they have no responsibility of a media company having intermediary immunity. It gives them the freedom to decide what people see, what is true, and what gets to be published and aired on the media platform.
On the other hand, how much ever democratic and liberal a country be, it will not give control to its people and companies.
It is well known that no state is free from issues of national security, sovereignty, communal harmony, public safety, and these issues are used by the government as a hoax to make laws for their pleasure and control.
It was recently seen that a web series released on amazon prime as ‘Tandav’ was critically praised for its writing and content but the makers had to suffer FIR and prosecution and were directed to take down some of the content.[1]
Social media platforms such as Twitter, Facebook were directed to take down several comments and accounts as they were considered to be harmful to the integrity of the country.[2]
To regulate the content and policies of these companies, the government enacted new media rules and amended the Information Technology Act, 2000.
What are new Media Rules?[3]
On February 25, 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting (MIB) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Rules 2021) under Section 87 of the Information Technology Act, 2000 (IT Act).
The objective of these intermediary guidelines was to supersede Information Technology (Intermediaries Guidelines) Rules 2011 and to establish the government’s oversight over social media and OTT platforms.
These rules are divided into three parts, first part defines all the terms used in the guidelines, the second part deals with requirements that must be followed by social media intermediaries, and part 3 deals with the code of ethics and procedure and safeguards concerning digital media.
Section 2(w) of the IT Act defines an intermediary as “intermediary“, concerning any particular electronic records, which means any person who on behalf of another person receives, stores or transmits that record or provides any service concerning that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places, and cyber cafes.
Under intermediary rules, 2021, the requirements that had to be observed by social media intermediaries while discharging their duties included the following: publish, remove, protect, access, report grievances.
The rules prescribe a code of ethics for online news, OTT platforms, digital media. It also provides for the classification of content for OTT platforms in five based categories are U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). They classify the subjects into two categories:
- Publishers of new and current affairs content and
- Publishers of online curated content.
They also give the self-regulating body made by the Ministry of Information and Broadcasting the power to issue guidance or advisories to publishers.
They increase transparency, enhance the efficiency of content moderation techniques, and make the companies inform the users that they need to adhere to the policies and keep them updated about any change in the policy.
Publishers of news on digital media would be required to observe norms of journalism content of the Press conference of India and program code under the Cable Television Network Regulation Act.
According to the government, any social media with more than 50 lakh registered users will be called a significant social media intermediary and will have to comply with guidelines. If the guidelines are not complied with, the company will be liable for criminal prosecution.
Big tech companies will no longer be treated as intermediaries, they will have no immunity and will be treated as any other publishing platform.
What is the response of these companies?
After passing the guidelines, the government gave 3 months to comply with changes in the rules. Companies like Facebook and Google have given the notice to comply whereas there has been no comment by Twitter.
In consequence of the order of the government, WhatsApp filed a lawsuit in Delhi Court against the government station that one of the rules on implemented guidelines is unconstitutional as it infringes the fundamental right to citizens in the Indian constitution.
This lawsuit has escalated the fight between Indian Prime Minister Narendra Modi and the tech giants of the USA.
“Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy,” WhatsApp said in a statement when asked to comment on the lawsuit.
The government in reply has asked the companies to find a way to implement the guidelines without prejudicing the rights and interests of the users.
The Indian government and twitter have been locked in a battle since February this year for national interests and freedom of speech of Indian citizens. The conflict started when Twitter founder Jack Dorsey liked some tweets that were made in the favour of farmers’ protests in India and the Indian government stated that it showed the biased nature of the company.[4]
Twitter had initially blocked around 250 accounts of an investigative news magazine, and activists supporting farmers’ protests on the orders of the Indian government citing objections harming public order but the block was lifted 6 hours later as Twitter had minimal justification to do so.
Around May 24, Delhi police visited twitter offices in south Delhi and Gurugram to serve the notice as they stated that the company was not abiding by the orders of the government and was delaying replies.
Once the new media rules came into effect from 26th May 2021, the government asked Twitter to follow the guidelines or else face consequences.
In response to this, Twitter alleged that the government was trying to withhold freedom of speech by forcing the new media rules and was violative of democratic principles mentioned in the Indian Constitution.
The Union ministry of electronics and information technology sent the final notice to the tech companies to abide by the rules warning criminal prosecution in case of noncompliance.
If Twitter does not comply with the new guidelines, it might be at risk to lose its intermediary status which protects the social media platforms from being prosecuted for the posts made by its users.
It is also feared that it might lose its authority to work in India and might face a ban which will lead to huge losses to the company as India is the third biggest market for Twitter around the world.[5]
After the deposition of Twitter before the Parliamentary Standing Committee on Information Technology, Facebook was called to give its views and statement regarding the new media rules. Facebook India associate general counsel Namrata Singh and the company’s director of public policy Shivanath Thukral attended the meeting and discussed several issues.[6]
According to the guidelines, Facebook will have to give the origin of any message to the court or government whenever required.
The government gave three months guidelines to abide by the rules and if it is found that they still have not complied with the rules, they can be prosecuted and face criminal liability.
Even Facebook has not sent any intimation to the government regarding the compliance, the officials from Facebook have stated that they are ready to comply with the rules.
“We aim to comply with the provisions of the IT [Information Technology] rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies,” a Facebook spokesperson said.[7]
Conclusion
The new intermediary guidelines have been criticized by the younger generations as it puts a bar on the free usage of social media platforms and there will be controlled publication of media on the digital platform but the government has ordered the companies to abide by the guidelines.
This will give a chance to the government to control the speech and opinions of the people. It can be assumed that the citizens will not be able to raise their criticism and opinions freely and will be forced to face consequences for their actions.
The government will be able to control the contents per their whims causing loss to the companies and their policies will always be scrutinized by the government.
- Unknown, “Tandav Row and all FIRs, complaints filed against Amazon Prime web series till now”, available at: indiatoday.in (Last visited on 30 June 2021) ↑
- Unknown, “Govt asks Twitter to remove misleading posts around coronavirus”, available at: businesstoday.in (Last visited on 30 June 2021) ↑
- Neeraj Dubey, Vibham Raman and Shubham Aggarwal, “Social Media Rules 2021: Transforming Social Media”, available at: mondaq.com (Last visited on 27 June 2021) ↑
- Ankita Chakravarti, “Twitter CEO Jack Dorsey likes tweets praising Rihanna for her stand on farmers protest in India”, available at: indiatoday.in (Last visited on 30 June 2021) ↑
- Prabhjote Gill, “Twitter is at odds with the Indian government over new laws — reigniting the age-old battle of national interest versus freedom of speech”, available at: .businessinsider.in (Last visited 30 June 2021) ↑
- Arpan Rai, “Panel asks Facebook, Google to comply with new IT rules on social media misuse”, available at: hindustantimes.com (Last visited on 30 June 2021)↑
- Deeksha Bhardwaj, “Aim to comply, discussing issues: Facebook on new social media guidelines”, available at: hindustantimes.com (Last visited on 30 June 2021) ↑