Announcing drastic changes in the new rules for social media companies and a code of ethics for OTT streaming platforms as well as digital news media, Union Ministers Ravi Shankar Prasad and Prakash Javadekar, on Thursday, 25 February said they “are empowering the ordinary users of social media”.
The 30-page document, titled ‘Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’, places a host of strict obligations on online platforms and provides for a three-tier mechanism for regulation of all online media, which confers blocking powers to an inter-ministerial committee.
However, after a close reading of the Rules, it appears that they don’t “empower users” as much as they strip freedoms from online content platforms, particularly on what can be posted and what can be shown.
The new rules, described by Union Electronics & IT Minister, as “light touch regulation”, however, focus less on due diligence, and more on the redistribution of power in favour of the government – creating space for tighter control over social media companies, streaming platforms and digital news outlets.
The Quint pours through the rules and explains in 10 points how they will impact the user of these online platforms. The points below looks at the specific implications for social media, OTT platforms and digital news.
Social Media: Fears of Over Censorship
These rules essentially view social media platforms as “ intermediaries” – who are essentially conduits or pipelines of internet content and not authors of content. Intermediaries are entities that transmit, host, or publish content generated by us – the users – but do not exercise editorial control over it. Think of a Facebook, YouTube, or Twitter.
Therefore, Twitter cannot be held guilty for a hate speech published by an individual on its platform. Now, in order to enjoy this immunity, the government wants intermediaries to effectively monitor content even more closely.
What the new Rules do is provide stricter and wide-ranging obligations on intermediaries for proactive monitoring of content and fear of legal liability or action could lead to over-censorship of content.
HOW IT AFFECTS US: The collateral damage here is citizen’s free speech and privacy which will be unconstitutionally hampered as a result.
Social Media: Unproven AI to Monitor Content
The news rules require social media to “deploy technology-based measures, including automated tools” to filter out objectionable content like child sexual abuse. However, as history has shown, such tools not only suffer from major accuracy problems but also can lead to function creep.
The Internet Freedom Foundation, in its blog explains that the development of artificial intelligence (AI) tools of censorship is replete with a host of risks, including the underdeveloped and imperfect nature of AI in the current state-of-the-art.
“AI ‘learns' by examining vast amounts of data, and the development of a censorship AI is likely to require social media intermediaries to store and examine large amounts of user-generated content that does not in any way relate to the kind of content sought to be censored,” the IFF blog states.
HOW IT AFFECTS US: Coding biases in the development of AI often lead to discrimination, inaccuracies, and a lack of accountability and transparency. Automated forms of censorship and surveillance could disproportionately impact users’ freedom of speech and expression.
Messaging App: End-to-End Encryption at Risk
The rules also has a “traceability” requirement which mandates significant social media intermediaries like WhatsApp to “enable the identification of the first originator of the information on its computer resource.”
The requirement of “tracing out of such originator of information on its platform” constitutes a direct attack on the privacy of users by requiring encryption to be broken by messaging platforms such as WhatsApp.
There are two specific shortcomings of the the traceability requirement that IFF highlights:
- It has been shown to be vulnerable to spoofing where bad actors can falsely modify the originator information to frame an innocent person.
- The originator of the message has no control over who forwards the content, or how many times it is forwarded, or in which fora.
HOW IT AFFECTS US: Encryption becomes even more important now as more of our lives involve our personal data being aggregated and analysed at a scale that was never possible before.
OTT: Regulation Via Proxy
Along with guidelines for social media platforms, the rules also contain within them a ‘Code of Ethics’ for OTT streaming platforms as well as digital news outlets. At the outset, the move to regulate OTTs within the same rules meant for internet intermediaries appears to be regulation through proxy.
“We find this grossly unconstitutional,” IFF states, explaining that this oversight mechanism is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation.
HOW IT AFFECTS US: This move to bring OTT streaming platforms under the close watch of the government as well as create regulatory observations will have a direct impact on the nature and quality of the content we watch on these platforms.
OTT: Govt Babus Can Now Block Content
Among the main highlights of the new rules is the requirement of OTT platforms and digital media outlets to create a 3-tier grievance redressal mechanism. The third and top level of this structure will consist of representatives of various ministries and government departments.
This grievance redressal system, created without legislative backing, places government bureaucrats at the top of this oversight mechanism with powers to censure platforms for their content. These powers range from ordering platforms to issue an apology to blocking of content altogether.
Streaming companies have been batting for self-regulation for over two years and had even come up with a Code to do so which was signed by 17 major platforms. The Union I&B Ministry, however, has not been pleased with the provisions contained within it, especially its grievance redressal mechanism.
HOW IT AFFECTS US: This provision may push OTTs towards greater self-censorship of content to escape action by the governmental committee. This would have a direct impact on the freedom of the platforms to curate or create shows with the independence they seek.
News: Regulation With Legislative Backing
The Code of Ethics have also been extended to digital news media. This appears to be problematic as the purview of the Information Technology Act, 2000, does not extend to news media. Importantly, the guidelines do not have the legislative backing to regulate news media.
Section 79 of the IT Act, within which these rules have been brought, applies to intermediaries who do not author or exercise editorial control over content. News media does not fall under this classification and the Act does not apply to them.
It is concerning that while the government earlier planned to bring about these changes by enacting specific laws which would have to be approved by the Parliament, it may now go ahead and implement it through mere executive powers and bypass legislative debate on this issue, IFF explains.
“Considering that the regulation of video streaming platforms and news media was not dealt with in the earlier Draft Rules released by the government such drastic changes in regulation, in the absence of a wide consultation process with news media, OTT platforms and civil society is alarming,” says Kazim Rizvi, Founder, The Dialogue, a Delhi-based public policy think tank.
HOW IT AFFECTS US: Online news media, especially independent and smaller publications, has anyway come under intense scrutiny of the State in one form or the other. The rules open the way for increased scrutiny as well as increased costs of compliance and may lead to gagging of free and unhindered news reporting.
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