- GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
- GS-3: Challenges to internal security through communication networks, role of media and social networking sites in internal security challenges
In News: Amid the ongoing row with Twitter over the delay in the suspension of several accounts, the Union government informed Parliament that it is in the process of amending rules pertaining to the Information and Technology sector so that social media platforms could be made more responsive and accountable to Indian laws. The government stated that the new rules will also ensure digital media platforms adhere to the Code of Ethics.
The announcement came shortly after Union Law and IT Minister Ravi Shankar Prasad told the Rajya Sabha that the government will not shy away from acting against social media platforms if they are misused to spread fake news and incite violence.
A spat has been going on between Twitter and the Indian government over a suspension list, which contains mention of over 1000 accounts that need to be suspended or at least blocked in India for spreading fake news and hatred on ongoing farmers’ protest in the country. The social media firm has refused to act against all the accounts mentioned in the list, stating that it will not suspend accounts that belong to the media, journalists and activists to uphold freedom of speech and expression.
- Legitimate Voices: Twitter has said that the government’s blocking list had accounts of journalists, activists, and politicians whose accounts appear to be bonafide; that their posts are legitimate expression
- Disproportionate Order: Twitter has said that it reasonably believes that keeping them blocked would be a disproportionate act contrary to both Indian law and the platform’s charter objectives.
Centre’s Notice to Twitter
Background of the Notice issued
- Farmer protest & Social Media Campaign: The issue pertains to tweets put out by some handles on the ongoing farmer protests as also a hashtag that suggested that a farmer genocide was being planned.
- Reaction by Ministry: The Ministry of Electronics and IT ordered these handles (257 URLs and one hashtag) to be blocked on the grounds that they were spreading dangerous misinformation about the protests.
- Twitter’s Response: Twitter initially complied with the order but then restored these tweets and handles, which included those of media houses.
- Basis of Government’s Order: The Government’s initial order was issued under Section 69A of the Information Technology Act, 2000.
What is Section 69A of IT Act, 2000?
It empowers the government to direct an intermediary to block any information for public access in the interest of
- sovereignty and integrity of India
- defence of India
- security of the State
- Friendly relations with foreign States
- Public order or
- Preventing incitement to the commission of any cognizable offence relating to above
This is the same Section under which hundreds of Chinese apps have been banned in recent months.
Are platforms required to comply with government requests?
- Cooperation between technology services companies and law enforcement agencies is now deemed a vital part of fighting cybercrime, and various other crimes that are committed using computer resources.
- These cover hacking, digital impersonation and theft of data.
- The potential of the Internet and its offshoots such as mail and messaging services and social media networks to disseminate potentially harmful content such as hate speech, rumours, inflammatory and provocative messages and child pornography, has led to law enforcement officials constantly seeking to curb the ill-effects of using the medium.
- Therefore, most nations have framed laws mandating cooperation by Internet service providers or web hosting service providers and other intermediaries to cooperate with law and order authorities in certain circumstances.
What does the law in India cover?
- In India, the Information Technology Act, 2000, as amended from time to time, governs all activities related to the use of computer resources.
- It covers all ‘intermediaries’ who play a role in the use of computer resources and electronic records.
- The term ‘intermediaries’ includes providers of telecom service, network service, Internet service and web hosting, besides search engines, online payment and auction sites, online marketplaces and cyber cafes.
- It includes any person who, on behalf of another, “receives, stores or transmits” any electronic record. Social media platforms would fall under this definition.
- Section 69 of the Act confers on the Central and State governments the power to issue directions “to intercept, monitor or decrypt…any information generated, transmitted, received or stored in any computer resource”.
How does the government block websites and networks?
- Section 69A, for similar reasons and grounds on which it can intercept or monitor information, enables the Centre to ask any agency of the government, or any intermediary, to block access to the public of any information generated, transmitted, received or stored or hosted on any computer resource.
- Any such request for blocking access must be based on reasons given in writing.
- Procedures and safeguards have been incorporated in the rules framed for the purpose.
What are the obligations of intermediaries under Indian law?
- Intermediaries are required to preserve and retain specified information in a manner and format prescribed by the Centre for a specified duration. Contravention of this provision may attract a prison term that may go up to three years, besides a fine.
- When a direction is given for monitoring, interception or decryption, the intermediary, and any person in charge of a computer resource, should extend technical assistance in the form of giving access or securing access to the resource involved, and must comply with the request to intercept or monitor or decrypt the information concerned.
- Failure to extend such assistance may entail a prison term of up to seven years, besides a fine.
- Failure to comply with a direction to block access to the public on a government’s written request also attracts a prison term of up to seven years, besides a fine.
- The Act also empowers the government to collect and monitor data on traffic. When an authorised agency asks for technical assistance in this regard, the intermediary must comply with the request. Non-compliance may lead to a prison term of up to three years, besides a fine.
Is the liability of the intermediary absolute?
- No, Section 79 of the Act makes it clear that “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him”.
- This section protects intermediaries such as Internet and data service providers and those hosting websites from being made liable for content that users may post or generate.
- However, the exemption from liability does not apply if there is evidence that the intermediary abetted or induced the commission of the unlawful act involved.
- Also, the provision casts a responsibility on intermediaries to remove the offensive content or block access to it upon getting “actual knowledge” of an unlawful act being committed using their resources, or as soon as it is brought to their notice.
- In Shreya Singhal vs U.O.I (2015), the Supreme Court read down the provision to mean that the intermediaries ought to act only “upon receiving actual knowledge that a court order has been passed, asking [them] to expeditiously remove or disable access to certain material”.
- This was because the court felt that intermediaries such as Google or Facebook may receive millions of requests, and it may not be possible for them to judge which of these were legitimate.
What has been the government’s actions post Shreya Singhal Case?
- The role of the intermediaries was spelt out in separate rules framed for the purpose in 2011. In 2018, the Centre favoured coming up with fresh updates to the existing rules on intermediaries’ responsibilities, but the draft courted controversy.
- This was because one of the proposed changes was that intermediaries should help identify originators of offensive content.
- This led to misgivings that this could aid privacy violations and online surveillance.
- Also, tech companies that use end-to-end encryption argued that they could not open a backdoor for identifying originators, as it would be a breach of promise to their subscribers.
- Other proposed changes, which have not been acted upon, include rules that intermediaries should deploy automated tools for proactively removing or disabling public access to unlawful information, and to have a 24×7 mechanism to deal with requisitions of law enforcement.
Critical Analysis of the issue
- Provocation over Social media can lead to violence: In a very sensitive setting, one that at least at one point was simmering with the potential for large-scale violence, provocation of any kind using social media platforms is unacceptable. Hence, regulation of internet intermediaries by government for the maintenance of Public Order & Peace is essential.
- Twitter’s action is slippery slope: The world over, technology platforms have enough safeguards to act as intermediaries without being liable for the content that is published. But Twitter’s act of defying the orders as per the law means it is on slippery territory.
- Section 69 Upheld by SC: Though the use of Section 69A has been often criticised for the secrecy surrounding the process, it was upheld by the Supreme Court in the landmark Shreya Singhal vs Union of India (2015).
- Hashtag cannot be defended on grounds of Article 19(1)(a): While there are many grounds on which this Government’s handling of the farm protests can be criticised, it can be said that the hashtag that it wanted blocked was not merely distasteful but seriously problematic, and indefensible on the grounds of freedom of speech.
Global Issues and the Way Forward
No one country or corporation in the free world can credibly preach to others on the right path to digital salvation. Democratic forces need to consult each other and collaborate in developing new norms for managing the digital world. In the US, both the left and right are demanding that digital behemoths like Amazon, Google, Facebook and Twitter are brought under greater control if not broken up. In December, the US government filed a lawsuit against Facebook for anti-competitive practices in more than 40 states. Google and Amazon are also under legal scrutiny. Last December, the European Commission proposed new rules to promote competition and fairness in digital markets. The EU is likely to approve a Digital Markets Act next year.
For more than two decades, governments across the world were happy to buy into the claim that the tech companies will lead us to a world of innovation and plenty. Legal and financial concessions from governments at various levels allowed tech companies to rapidly gain ground and commercial muscle and dominate people’s lives. But governments are now questioning the sharp business practices of the tech giants.
- Labour Rights: While the tech giants have created a lot of new wealth, some of them have sharply squeezed the labour. Amazon is the most notorious. There are new efforts to unionise Amazon employees, but the company has been good at crushing these challenges in the past. In California, trade unions are battling against the success of Uber and Lyft to turn employees into “contract workers” to deny them multiple benefits.
- Taxes: Digital giants have been aggressive tax evaders. But Caesar is demanding his due now. Joe Biden, who has outlined a progressive platform, has promised to get big tech to pay their share of taxes in the US. His Treasury Secretary Janet Yellen is under pressure from America’s G-7 partners to work out the rules for taxes on US digital giants operating in other geographies.
- Politics: On the political front, when Twitter and Facebook shut down President Donald Trump’s accounts, there was celebration among liberals. But social media companies are unlikely to always find themselves on the winning side in other democracies. The context and issues are inevitably different and applying the same tactics against political targets will backfire, as Twitter discovered in Delhi. If India raised Twitter’s differential treatment of the riots in Washington and Delhi, European leaders raised important questions about social media’s actions against Trump. German Chancellor Angela Merkel spoke for many Europeans when she called it “problematic”.
The answer lies in: democracies modernising their laws to protect freedoms in the era of technological transformation.