New Rules for Digital Platforms- Unconstitutional or Instrumental?

The new set of guidelines for Digital Platforms, which were introduced by the center recently is the big step for digital transformation and can change the future of the internet in India. “The Information Technology (Guidelines for Intermediaries and Digital Media ethics code) Rules, 2021” are contentious. On one side, the IT Ministry claims them to be instrumental for digital regulation and presents them as a “soft touch oversight mechanism”, and on the other side, adversaries like the Internet Freedom Foundation (IFF) finds them Unconstitutional and Undemocratic.

But, are they really unconstitutional?

Before deciding upon that let’s understand what these rules are about and how are they going to affect us and the digital platforms.

Broadly, the rules seek to implement a grievance redressal mechanism for the digital platform users. They also provide provisions for abating the issues of proliferation of false news and sexually explicit material over the internet. Compliance with law and adherence to the norms are the prime agendas.

According to the guidelines, Social media platforms like Instagram, Facebook, etc. will now have to appoint a grievance officer to deal with customer complaints. Significant social media intermediaries (Platforms with more than 50 lakh users) are now required to appoint a Chief Compliance Officer and a Nodal Officer who will ensure the smooth implementations of rules and compliance with laws respectively. Apart from this, messaging social media platforms like WhatsApp, telegram, etc. are required to assist the investigating agencies of the government to trace and identify the First Originator of any information as directed by the Judicial order, like an offense related to the sovereignty and integrity of India, or incitement to an offense in relation with obscene imagery of rape or child sexual abuse material. Such content will be taken down from the platforms within 24 Hours of being flagged.

Talking of the Digital News Publishers and OTT Platforms, a three-tier grievance redressal system has been made obligatory, headed by a Government committee. Such platforms will have to comply with the Code of Ethics, which includes the ‘Norms of Journalistic Conduct’ being prescribed by the Press Council of India as the content which shall not be published in any case and The Programme Code of the Cable Television Networks (Regulation) act. OTT Platforms are also instructed to classify their content on the basis of their nature and type into various age categories by incorporating parental control system.

Why did the Government opt for a completely new set of rules?

The recent face-off between the Government and Twitter can be assumed as the prime instigator for the introduction of new rules. Twitter refused to comply with the Government’s order to block several hashtags and accounts of Journalists and Activists over the farmer’s protest. Complaints against the makers of series ‘Tandav’ and ‘Mirzapur’ for hurting the religious sentiments of people can also be assumed as one of the reasons for the new rules. It has raised the demand for censorship of content of OTT Platforms.

Unconstitutional or Instrumental?

Regulation of Digital Content without hampering the freedom of speech of people along with the elimination of the proliferating obscene online content which aggravates violence and vulgarity is the major chunk of a challenge that every government faces.

These guidelines will significantly help in the abatement of sexually explicit content over digital platforms and will empower the citizens as their grievances will now be resolved within the stipulated time period.

Despite this, they have some serious shortcomings which need to be addressed. Internet Freedom Foundation (IFF) believes that there will be excessive governmental control over digital news and OTT content. The cumbersome three-tier grievance handling system with a government committee at its apex will affect the constitutional right of freedom of speech and expression adversely. Moreover, it will also hamper the Right to Information to some extent. These policies demand strict censorship of internet content and also seeks expansion of the IT act, 2000 under the government regulation without any parliamentary discussion and legislative action. That is why adversaries believe them to be undemocratic.

Platforms will now have to review their policies to comply with the new rules. They might have to bring a change in their algorithm which will increase their R&D costs. Amidst this many platforms which don’t have a good userbase in the country might opt to retract their business instead of complying. The cumbersome three-tier grievance redressal system and its elongated workings will also hamper the working of digital platforms.

IFF also criticizes the rule for social media platforms that requires them to trace the first originator of the problematic content as discussed above. It raises concerns on how will such apps manage to identify the originator when they follow the policy of end-to-end encrypted messages.

It sows the seed of doubt in citizens pertaining to their data privacy and freedom of speech.