A social media platform cannot evade their “responsibility, accountability and larger commitment to ensure that its platform is not misused on a large scale to spread incorrect facts projected as news and designed to instigate people to commit crime,” IT Minister Ravi Shankar Prasad in Parliament said in the Rajya Sabha on the 26th of July 2018. Worryingly, he added that “If they do not take adequate and prompt action, then the law of abetment also applies to them.

The minister was speaking during during a “Calling Attention Motion” discussion in Parliament, on “Rising Incidents of Violence and lynching in the country due to misuse of social media platforms”. India has seen a spate of mob violence and Internet Shutdowns over the last two years: around 29 incidents of lynchings fueled by rumours of gangs kidnapping children, and several other instances which have led to over 90 Internet Shutdowns already this year.

The Minister said that, just when there is provocative writing in newspapers, the newspaper cannot say that it is not responsible, if there is “fake unconfirmed news” on social media, because of which people are dying or being instigated to kill, then they [platforms] are also responsible.

MediaNama’s Take: This seems to be in contradiction to Section 79 of the IT Act, which provides safe harbor to intermediaries (platforms and aggregators) against liability for how users use them, as long as they don’t have “actual knowledge” of the infringing content. These Intermediary Liability protections ensure that platforms can scale to allow billions of users: in that sense, if platforms were held accountable for how people use them, then they would cease to exist. Imagine if a road was held accountable for how people drive. It’s impossible for platforms to have actual knowledge of each piece of content when there are billions of pieces of content being uploaded each minute.

What the government of India expects platforms to do

In his speech in Parliament, the minister said that Some of the provisions of the IT Act need to be “revised and reinforced so that they can respond to the emerging challenges. This is proposed to be done by strengthening the implementation aspects of Section 79 of IT Act, 2000.

Some changes that the minister spoke about:

1. Physical presence in India: The IT Minister said that it is “critical” for social media providers to ensure that they have a physical presence in India, in order for them to be regulated as ‘online intermediaries’ under Indian law.

He also said that “Such behaviour is facilitated by virtual and borderless nature of cyber space, where anyone can open account in any name including fake name from any part of the world. Most social networking sites do not conduct background information check and their servers are located abroad.

MediaNama’s Take: what will the government of India do if a social media platform doesn’t have a presence in India? What is social media? Any platform that allows the creation of profiles, and for profiles to interact with each other? What will they do? Block everything that doesn’t have a physical presence? That will deprive Indian users of access to the latest platforms. Practically, this requirement is not enforceable, and will be used arbitrarily when the government wants to block something.

That bit about expecting background information checks to use Social Media is bizarre: it reminds me of Vinit Goenka’s outlandish suggestion to link WhatsApp accounts to Aadhaar.

2. Ensure that malicious messages can be traced to their source of origin: The minister said that “To continue to target Indian users, such intermediaries must implement appropriate remedial measures and assist in curtailing any use of such services and platforms that perpetuate harm in Indian society, including loss of life or disruption of public order. This, at the very minimum, necessarily requires them to ensure that all such malicious messages circulated through their services or platforms in India can be traced, and their source of origin be effectively identified by law enforcement agencies or relevant public authority.”

MediaNama’s take: This is in line with recommendations that I had made regarding Addressing Whatsapp’s Fake News Problems. This needs to only be allowed via a court order, in my opinion, to ensure that the request is lawful. We cannot trust law enforcement agencies, which prefer mass surveillance, to only make lawful requests.

3. Grievance officer: “All social media platforms should be required to locate their grievance officer in India who could act as the point of contact for all communication with regard to such grievances. The duty of such grievance officer should cover not only to receive grievances on real time basis, but also to inform law enforcement agencies.”

MediaNama’s Take: Same point as the response to the suggestion requiring a physical presence.

4. Technological solutions from platforms: Directives will be issued to intermediaries that would “require all such social media platforms to ensure that their platforms do not become vehicles for promoting hatred, terrorism, money laundering, mob violence and rumour mongering.”

  • Filtration for verified fake news: “They should provide for technological solutions so that verified fake news and provocative messages can be filtered by technical solutions.”
  • Grievance redressal, reporting to law enforcement agencies: “They should bring in a more effective mechanism for receiving grievances and they should report to the law enforcement agencies. “
  • Verify news on the platform: “They should also seek to provide the facility of verifying fake news on the platform itself.”

MediaNama’s take: Platforms can only act if they have actual knowledge, and there is no way that they are going to be able to actively determine the veracity of messages, especially if, like WhatsApp, they have end to end encryption, and themselves cannot read the messages. We need to ensure end to end encryption to ensure privacy. Thus, filters are impossible for truly secure platforms, unless they are local, on-device filters, and then the challenge is: who determines what the filters should be? How often and how will they be updated?

Definition of Fake News

It’s important here to note how the Minister defined Fake News. He said,

“Fake news is a type of propaganda that consists of deliberate misinformation or hoaxes spread via traditional print and broadcast news media or online social media. It can include text, visual, audio, data report, etc. Fake news is written and published with the intent to mislead in order to damage an agency, entity, or person, and/or gain financially or politically, create disturbance and unrest, often using sensational, dishonest, or outright fabricated headlines to increase readership, online sharing, and Internet click revenue. The typical attributes of fake news are that it spreads fast, is doctored, is incorrect, is mala fide, is intentional, is sensational/glamorous, is unverified, and goes viral.

MediaNama’s take: How will government determine intent, or that misinformation in deliberate? Incorrect information is not illegal. Can we even trust the government to be able to determine intent, and expect them to be fair under all circumstances? Even courts aren’t sufficiently equipped for this scale: note the recent order from the Delhi High Court regarding the Fake News that Pepsico’s snack Kurkure has plastic in it: even instances of people calling this rumour fake, and those satirizing it, have been censored.

5. Allow legal proceedings in India: “Further, this Government will strengthen the appropriate legal framework to ensure that significant social media and instant messaging service providers targeting Indian users do not deprive Indian users of the right to bring proceedings in India, and of the protections of Indian law.”

MediaNama’s take: This is an important ask. If companies want to serve Indian customers, then they must comply with Indian law. Citizens should have the right to redressal. You cannot, like Google and others have done in the past, claim that the Indian offices are merely sales offices, thus keeping the overall business out of reach of Indian law enforcement.

Awareness campaigns

The government of India plans to run awareness campaigns:

  • “A campaign to educate school children about the misuse of social media for propagation of false news”
  • “The Common Service Centres will also be engaged in the task of promoting this message among people especially in rural areas.”
  • “Various stakeholders such as educational institutions, professional and industrial associations, Chambers of Commerce, etc., would also be involved in this campaign.”
  • “The State Governments will also be requested to join in this effort to make the citizens more aware to prevent the use and abuse of social media.”

MediaNama’s take: While it shouldn’t be mandated, it would be useful for WhatsApp to run an educational campaign on its platform for users signing up for the first time.

Other suggestions

1. V. Vijaysai Reddy (Andhra Pradesh):

  • Curbs on advertising from Indian companies: “All these applications and service provides depend upon the advertisements. That is the only revenue that they have got. So, if the Government of India can work out and wherever the applicant-owner or promoter crosses the line, they can think of imposing some curbs on Indian companies giving advertisement lease to these applications.”
  • Constant vigilance: “There has to be a continuous, constant vigilance and monitoring without affecting the right of speech and without getting any allegation that we are encroaching upon the individual freedom because they can’t tap the telephones or they can’t intervene.”

2. KK Ragesh

  • Special Courts for cybercrimes: “Minister to set up special courts manned with trained Judges — that is very important — to deal with cyber crimes because that is a separate issue that needs to be dealt with separately.”
  • New provisions in the IT Act: “At the same time, we should come up with certain stringent provisions in IT Act for preventing the misuse of social media by the communal forces.”

3. Dr. Narendra Jadhav:

  • for Parliament to “put our heads together and evolve a code of conduct. Let us work out a framework.”