New Internet Rules – A Threat to big Techs?

Introduction

The use of the internet in India has increased dramatically in the past decade. India has emerged as one of the largest markets for many global technology companies in terms of the user base. The age of information has revolutionized communication and has democratized access to information and connectivity. The Internet has opened a new world for many people around the world. It is a manifestation of never-ending innovation and creativity. While the internet has changed lives, it has brought its own set of challenges like fake news, data privacy issues, and unfettered freedom of content. There is also growing evidence that the application of content moderation and conduct rules can often result in inconsistent and arbitrary outcomes that to some extent can be based on the level or nature of public outcry over any particular incident.

As a result of all of this, India’s government has taken the first major step toward controlling big tech platforms. The government’s latest Intermediary Guidelines for the Information Technology Act (IT Act) limit platforms and how they operate in India. To combat disinformation and maintain control of social media sites, their activities, and the material they publish, and for whom, the government introduced new rules regarding the use of social media and the regulation of streaming services.

New Internet Rules

Today, India is no longer a consumer but a producer of original high-quality video content that provides employment and entertainment to audiences locally and globally. However, the new internet rules or officially known as Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have fundamentally changed the way the internet was used to be expressed in India. In the present scenario, people use the internet and social media as a way to express their feelings and to express their right to freedom of speech and expression. The Information Technology rules, 2021 are formed to regulate the tech platforms operating in India and will supersede the policies of platforms that will have to comply with new rules. In essence, they will decide the future of the internet in India.

The reason government comes up with these rules in the first place was because of the non-compliance of intermediaries to the Information Technology rules,2011, and taking the safe harbour option provided to the intermediaries for granted, who are often slow to respond to issues of public safety and arbitrary in their approach. Moreover, the recent events regarding the farmers’ protest and release of web-series Tandav negatively depicted the government to incite hatred against the government amongst the people. So as per the government, the rules are designed to prevent abuse and misuse of social media and they seek to empower the users of social media by requiring these platforms to put in place a robust public grievance redressal mechanism. Hence, to regulate the OTT platforms, which stream curated content such as Netflix, Amazon Prime, Hotstar, etc., the government came up with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

New rules in brief

Part I of the Intermediary Rules mainly lays down the definitions of terms and, Part II and Part III contain the actual compliances and requirements. While Part II has been administered by the Ministry of Electronics and Information Technology or MeitY and Part III has been administered by the Ministry of Information and Broadcasting. The previous guidelines that intermediaries were required to comply with are present under the Information Technology (Intermediaries Guidelines) Rules, 2011 but the government has been contemplating changes to these guidelines since December 2018. Some new important rules are as follows-

1. Publishers of news and current affairs content, including aggregators, have to publish a monthly compliance report detailing all the grievances received and what they have done to address them.
2. OTT platforms such as Netflix, Amazon Prime, and others now have to classify all content suitable for viewing by age.
3. Content put out by OTT platforms and other online publishers should keep in mind India’s sovereignty, relationship with other countries, and these platforms should self-regulate.
4. Social media firms should not host or store, and must take down content prohibited in the context of India’s sovereignty, integrity, defamation, and incitement to offence. 
5. If some content is deemed offensive by a court or government, social media firms have to pull it out within 36 hours; 24, if it is sexually offensive content.
6. If the government asks for it, platforms have to trace the “first originator” of a piece of content in case of a law-and-order situation. 

Threat to big techs

The new rules brought in by the government which seeks to regulate digital news platforms and OTT content providers, give the government and executive an arsenal of unnecessary powers that force tech companies and news outlets to comply with the government surveillance and censorship demands.  Nevertheless, the big tech platforms owe people accountability and user rights but the rules make this problem even worse as they are part of a wider push toward “digital authoritarianism,” including Internet shutdowns and arrests of journalists.Internet form an open platform for creation, collaboration, access to knowledge, and innovation to a tool of automated censorship and surveillance of its users but the new rules hamper the very essence of censorship and censorship in terms of freedom of expression, privacy, and security. The rules force the companies to remove content and keep information about the originator of any message, which not only affects the end-to-end encryption but also increases surveillance.

The big tech platforms, which are already in losses, are placed with additional responsibilities and expenses to comply with these rules. For example, the discriminatory approach between online news media and traditional print newspapers and legacy media places an additional responsibility on the former based on an ambiguous definition that lends itself to confusion and uncertainty. Moreover, the excessive and unnecessary executive power to control the social media platforms will hinder their process and functioning which will in result force the Social media companies with large user bases in the country to significantly alter their operating model to accommodate the new mandates from the Indian government under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. Thus, the ripple effects of these provisions will have a devastating impact on the big tech platforms.

Conclusion

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, can transform how millions of Indians access and use the internet. The rules contain useful provisions like mandating transparency in cases when user content has been removed but they come with no clear mechanisms for tech companies to push back against potentially unlawful government demands. The new areas of regulation that have been added without public deliberation have made the situation worse as the Intermediary Rules have conferred unbridled powers to the executive, potentially in complete disregard to the constitutionally guaranteed rights of freedom of speech and expression and that the Rules suffer from an excessive delegation of powers.

Regarding the same issue, a case has been filed before the High Court of Delhi by the foundation of independent journalism challenging the constitutional validity of the new rules and that the rules have shaken Big Techs and stoked concerns over free speech and privacy. The rules allow India to increase internet surveillance and censorship at a time when it is cracking down on dissent as they have the potential of chilling our voices online and also hurting our privacy.

REFERENCES

1. https://datagovernance.org/files/research/BahlRahmanBailey_-_Paper_6-2.pdf
2. https://renzdivino.com/2018/10/16/internet-communication-and-information/
3. https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights

 This article is authored by Vibhor Jain, Student at Government Law College, Mumbai.