The Hindu Today News & Editorials – 01 March 2021

1) A wolf in watchdog’s clothing

Instead of soft-touch monitoring, the government has opted for predatory new rules.

GS-2: Important aspects of governance, transparency and accountability, e-governance- applications, models, successes, limitations, and potential;

GS-3: Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security;

 

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Context:

1. The new rules “The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021” introduced by the Centre to regulate all types of digital platforms, with the idea of redressing user grievances and ensuring compliance with the law.

2.  This regulation holds troubling implications for freedom of expression and right to information, presented it as a “soft-touch oversight mechanism”. A government press note termed it “progressive” and “liberal”.

 

The new rules claimed:

1. The rules claimed to “address people’s varied concerns while removing any misapprehension about curbing creativity and freedom of speech and expression”.

2.  These rules force digital news publishers and video streaming services to adhere to a cumbersome three-tier structure of regulation, with a government committee at its apex.

3.  The new rules pertain only to digital news media, and not to the whole of the news media, hardly provides comfort, as the former is increasingly becoming a prime source of news and views.

 

The new rules defined Digital media for first time:

1. Digital Media’ means digitized content that can be transmitted over the internet,

Computer networks and for the purposes of these rules includes content received, stored or transmitted by: an intermediary; or a publisher of news and current affairs content or online curated content.

 

 

The Concern:

1. The great concern in a country where the news media have been given the space all along to self-regulate, based on the mature understanding that any government presence could have a chilling effect on free speech and conversations

1.  it is of significant concern that the purview of the IT Act, 2000, has been expanded to bring digital news media under its regulatory ambit without legislative action, which digital liberties organizations such as the Internet Freedom Foundation have flagged.

 

Mechanism to redress complaints:

1.  The three-tier regulatory mechanism will seek to redress complaints with respect to the digital platforms’ adherence to a Code of Ethics.

1. Other things includes the ‘Norms of Journalistic Conduct’, compiled by the Press Council of India, the Programme Code of the Cable Television Networks (Regulation) Act, as also a negative list of content that shall not be published.

 

The Code of Ethics:

1.  While there is not much that is wrong with the Code of Ethics per se, what is problematic is that it will take little to bring this regulatory mechanism to vicious life.

2. According to the rules, “Any person having a grievance regarding content published by a publisher in relation to the Code of Ethics may furnish his grievance on the grievance mechanism established by the publisher.”

1. Literally anyone could force a digital platform to take up any issue. It has to be taken up first, under the new rules, by the digital platform’s grievance officer. If there is no resolution or if the complainant is dissatisfied, this can be escalated to a “self-regulating” body of publishers.

 

The new rules increased the compliance burden for social media platforms:

1. The bigger of these platforms will have to appoint chief compliance officers, to ensure the rules and the laws are adhered to, and a nodal officer, with whom the law enforcement agencies will be coordinating, apart from a grievance officer.

2. Such platforms in the messaging space will have to “enable the identification of the first originator of the information on its computer resource” based on a judicial order.

3. The rules require messaging apps such as WhatsApp and Signal to trace problematic messages to the originator.

4. While the triggers for a judicial order that require such an identification are serious offences, it raises uneasy questions about how such apps will be able to adhere to such orders, as their messages are encrypted end-to-end.

 

 

Problems with online content:

1. it’s referred to a 2018 Supreme Court observation that the government “may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos”.

1. The websites in content hosting platforms and other applications, besides making a mention of discussions in Parliament about social media misuse and fake news.

 

 The newspaper argued earlier:

1.  It could prove counterproductive in a country where the citizens still do not have a data privacy law to guard themselves against excesses committed by any party.

2. Regulation has an important place in the scheme of things, and no one advocates giving a free pass to the digital platforms. The laws to combat unlawful content are already in place.

3. What is required is their uniform application. It is also far from reassuring that this government has had an uneasy, sometimes unpleasant, relationship with media in general.

 

The appetite for criticism:

1. The appetite for criticism, so vital in a democracy, is just not there. Some weeks ago, the government had a run-in with Twitter after it defied orders to ban certain hashtags and handles.

2. Also an environment where people are sensitive to content, the regulatory mechanism could become an operational nightmare.

3. The casualties could be creativity and freedom of expression. The government would like to see itself as a watchdog of digital content in the larger public interest, but it comes across as a predator.

 

Conclusion:

1. The tightening of policy is inevitable given new challenges. But it would be wrong to imagine that by implanting itself in the grievance redress process or by making platforms share more information, the government can solve these problems.

2. Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the new rules somehow overcome the digital media challenge.

 

2) More about Big Government than Big Tech.

Under the IT Act new rules, it appears that the interest is largely about trying to force technologists to fall in line.

GS-3: Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges, basics of cyber security;

 

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Context:

1.  The Union Government issued a set of rules under the Information Technology Act, noting that it was superseding rules issued under Section 79 of that statute in 2011.

1. The Rules notified therein, subject to the import of Article 19(2) of the Constitution and ensure that their platforms are not used to commit and provoke terrorism, extremism, violence and crime.

2. Section 79 of IT act had specified that limited immunity for legal liability regarding user content, which Parliament had strengthened in 2008 when it amended that law.

 

Section 79 of the IT Act 2000:

1. Section 79 of the IT Act elaborates on the exemption from liabilities of intermediaries in certain cases.

2. Section 79(2)(c) mentions that intermediaries must observe due diligence while discharging their duties, and also observe such other guidelines as prescribed by the Central Government.

1. The intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;

 

Without discussion:

1. The notification of new rules, however, do not merely represent the executive branch superseding previous subordinate rules under a law with newer regulation.

2. They represent a dramatic, dangerous move by the Union Government towards cementing increased censorship of Internet content and mandating compliance with government demands regarding user data collection and policing of online services in India.

3.  This has happened in the absence of open and public discussion of the full swathe of regulatory powers the government has sought to exercise, and without any parliamentary study and scrutiny.

4.  The Union Government has chosen to pass these rules to outline the due diligence that Internet intermediaries ranging from telecom providers, search engines, Internet platforms and able to claim their qualified legal immunity under Section 79 of the IT Act.

 

The Curious stand:

1. The government’s claimed that the rules were also issued under the legal authority to specific procedure for blocking web content under Section 69A of the IT Act.

2. The ability to issue rules under a statute to frame subordinate legislation is by its nature a limited, constrained power.

1.  it is limited to the substantive provisions laid out by Parliament in the original act passed by the latter  the executive branch is subordinate to what Parliament has permitted it and cannot use its rule-making power to seek to issue primary legislation by itself.

 

The Directives and mandates:

1.  The executive created new rules that apply only to “significant social media intermediaries” a term that appears nowhere in the Information Technology Act.

1. It has included mandates for retention of user data by such intermediaries for use by government agencies and clauses on how popular messaging services have to enable the tracing of the original creator of a even though the sections in the law cited by the government do not give them that power.

2. The rules have grown to include a chapter on how digital news sites have to be registered before the Ministry of Information and Broadcasting,

3. Further laid out a mechanism by which streaming video sites featuring original content) have to agree to a government-supervised “self regulatory system”.

4. Even though digital news service registration is not required under the IT Act and streaming video content has not been included under the ambit of the Cinematograph Act.

 

The message is clear

1. It appears that the government wants to send a message to all Internet ecosystem players that they desire compliance with their desires formal or informal regarding what content should be taken down, along with a removal of any push back against over broad demands for user data and other surveillance orders by government agencies.

2. The Government of India wants to regulate practically, no institutionalised oversight or true checks and balances, to force censorship and surveillance on Internet platforms and other web services in India.

 

The concerns regarding the powers:

1. The increasing public discussion of concerns regarding the usage of these powers and challenges being made by firms and impacted individuals against their abuse is something that the Union Government would like to avoid.

1. The issue of direct formal orders when one can instead force compliance in less visible, more institutionalized ways Indicating that the government has made up its mind to force these mandates by notifying them,

2.  Even with doubtful legal validity, is a key signalling effect to Internet ecosystem players, especially firms keen to avoid public battles and smaller entities who do not have the resources or political position to be able to contest overboard government directives.

 

Why is Essential?

1. In world “At 3.8 billion, the number of internet users comprises more than half the world’s population,” and China has the largest base, accounting for 21 per cent of all internet users globally with USA  has 8 per cent of global internet users.

1. Global internet user growth is solid but slowing, it said. The growth was 6 per cent in 2018, down from 7 per cent in the previous year.

2. In 2020, India had nearly 700 million internet users across the country. This figure was projected to grow to over 974 million users by 2025, indicating a big market potential in internet services for the south Asian country.

 

 

Conclusion:

 1. The misuse of social media by criminals and anti-national elements has brought new challenges to the Law Enforcement Agencies (LEA). Like recruitment of terrorists, circulation of obscene content, spread of disharmony, incitement of violence, public order, fake news etc. And Section 79 of IT act 2000 help in combating them.

2.  The advancing Internet content control interests and increased requirements around government demands for user data, while not advancing surveillance law reform or enacting a strong statutory data protection framework,

1. It appears that the government interest is more in advancing “Big regulation” and trying to force technologists to fall in line, no matter the cost to our fundamental rights in our Internet age.