A number of news reports yesterday suggested that because of non-compliance with the Information Technology Rules 2021, platforms such as Twitter, Instagram and Facebook face a ban in the country. The IT Rules come into force for social media platforms today, the 26th of May 2021, exactly 3 months after they were issued.
A few points to note:
1. Not just Twitter, Instagram and Facebook: To be classified as a Significant Social Media intermediary, platforms need to have over 5 million registered users, and “which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its service”
This broad and subjective definition is such that it ensnares not just the intended targets — social media platforms — but also business messaging/video services such as Microsoft Teams, Slack, Zoom, WhatsApp, LinkedIn, and so on. It perhaps includes ad networks; the comments part of the Times of India; the collaboration part of Google Docs, Google Forms, YouTube comments, and so much more.
2. Platforms won’t get banned because it will result in legal action: No part of the IT Rules allow the government to ban the platforms. That aside, the IT Rules 2021 are on a weak footing — they go beyond the scope of the IT Act, and a subordinate legislation cannot do what the parent act doesn’t allow it to do. It is being used for enforcement when the rules are supposed to merely specify due diligence requirements under Section 79 of the IT Act.
If there is coercive action, the platforms will most certainly move the court to challenge the guidelines, and the rules will be under scrutiny for their constitutional infirmity. In the absence of the IT Act being amended in the interim to validate the rules, the government will probably lose.
3. OTT Streaming services haven’t been banned yet: While social media platforms were given 3 months to comply with the IT Rules 2021, OTT Streaming services were not. The government did, in private meetings, tell streaming services that they can take time to comply, and informally gave a deadline of 90 days (which also expires today). That being said, one industry source told me that the message from the government was – take your time. Take till 90 days. It’s not like we are enforcing this immediately.
Thus, most of the streaming services industry operated on the idea that 90 days is the operative deadline, even though it hadn’t been notified.
4. Implementation will be ad-hoc: In the battle for power between the Indian government and the streaming services, the IT Rules 2021 are leverage. They’re the stick to wield against platforms when it is needed. There’s an easy example to illustrate this.
As far back as 2012, there was a case in the Allahabad High Court about platforms not appointing a grievance officer, as required under the IT Rules 2011. In 2018, Twitter, WhatsApp and Facebook were queried about not having a grievance officer in India. In 2018 as well, IT Minister Ravi Shankar Prasad requested WhatsApp to set up a grievance officer in India.
I requested CEO Whatsapp Chris Daniels to set up a grievance officer in India; establish a corporate entity in India & comply with Indian laws. He assured me that #Whatsapp will soon take steps on all these counts. pic.twitter.com/0RoxQuSwSQ
— Ravi Shankar Prasad (@rsprasad) August 21, 2018
Why did the minister need to request a platform to do what the 2011 Rules mandate? It’s given how egregious some of the provisions in the 2021 Rules are — including a potential violation of the fundamental right to privacy — it’s unlikely that government will enforce them.
5. The power balance needs to be addressed: There is a clear indication that the balance of power between users and platforms lies with the platforms. They control speech, and our speech is at their mercy. At the same time, they’re private platforms performing a public function. We need to have more discussions to understand how this power can be curtailed, especially since the impact of how these platforms are used is felt by citizens and countries. Their power needs to be curtailed. At the same time, the solution to this problem isn’t to empower governments. Governments will, as the Indian government is going to, wield this power arbitrarily. They’ll use it to threaten, intimidate and bully platforms, and force them to censor user speech that is not to their liking, especially when their requests are bound by secrecy, as rules under Section 69A enable.
It is thus also important to protect platforms as enablers of free speech. The solution here lies in empowering users by restricting the power of platforms over users — protect free speech — and allow governments to regulate harmful speech, with transparency, without arbitrariness, and in line with global human rights values. It’s not going to be easy.
6. Not enough time: There’s a valid argument that social media platforms have not been given enough time to set up processes and comply. Koo and MyGov appear to be among those who have. Does the NAMO App have a Chief Compliance Officer?
For platforms with over 100 million users, to set up mechanisms to deal with consumer complaints within 15 days takes setting up not just a large team but also procedures. Even 0.01% of complaints from WhatsApp’s 550+ million users is 55,000 complaints.
As Deepak Maheshwari tweeted, companies were given two years to implement GDPR. The IT Rules 2021, with far-reaching changes for Internet ventures, haven’t even been given six months. In case of some of these intermediaries, OTT streaming and News media not even a day was given.
— Deepak Maheshwari (@dmcorpaffair) May 26, 2021
Above all, the Rules don’t take into account how much time it takes to re-architect global platforms: to enforce traceability (which is a disproportionate requirement and impinges on privacy), WhatsApp will be expected to re-architect its entire platform globally. A 3-month deadline is unrealistic and only goes to show that the government of India has no understanding of technology.
Govt was expected to issue a set of FAQs to explain exactly how these guidelines are being implemented. It’s clear that the FAQs are not ready yet. Implementation of these rules is unclear until these FAQs are issued. It’s very likely that the deadline will be extended to give @GoI_MeitY and MIB time to figure these rules out because the rules themselves are a complete mess, and many propositions are arbitrary.
7. These are not Chinese apps: From a geopolitical perspective, the Indian government has less leverage and cause to act against US apps than they did against Chinese apps. As I had said then, the move against Chinese apps was a political one: soldiers were facing off across the Line of Actual Control, and the anti-China sentiment was at an all-time high. Even though there is a push-back against digital colonisation, let’s also not forget that the External Affairs Minister S. Jaishankar is in the US right now, on a 5-day visit, and on his agenda is to discuss vaccines for India and the sub-continent. Any move against US platforms at this time is unlikely to bode well for the US-India dialogue. Thus, there is no chance of these platforms being blocked.
Update 11.25 pm: Update: An earlier version of this incorrectly said that if 0.01% of WhatsApp’s 550 million users filed complaints, it would lead to 5 million grievances. The figure has been corrected to 55000. Error is regretted