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,
Social Media Regulation: Centre’s Notice to Twitter
Context: The Centre has issued notice to Twitter after the micro-blogging site restored more than 250 accounts that had been suspended earlier on the government’s ‘legal demand’.
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
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.
Conclusion
What further happens in this face-off will be of interest not just for the two parties but for the governments of the world as well as the platforms of the world.
