The notification also expanded the definition of digital media by mandating news portals to follow similar norms that govern traditional media publishers, such as newspapers and television news channels.
By notifying The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, under the Section 79 of the Information Technology Act, India has probably taken the toughest stand on regulation of social media and over the top (OTT) platforms in the world, said experts.
The revised guidelines, officials said, seek to ensure that companies are also more accountable for the content on their platforms while complying with local laws and government orders.
Scores of foreign digital companies with millions of users in India have to necessarily set up India offices with locally appointed officers who will be responsible for adhering to requests ranging from traceability of messages to taking down content.
Union minister for electronics and IT, Ravi Shankar Prasad said that concerns have been raised over rampant abuse of social media platforms and spread of fake news.
“Social media companies are welcome to do business in India and empower Indians… we welcome criticism and dissent… but it is important that users of social media are given a proper forum for resolution of their grievances in a time-bound manner,” Prasad said.
Social media platforms have been mandated to take down flagged posts within 36 hours of receiving a notice while encrypted messaging apps, including WhatsApp, Signal and Telegram have been directed to trace the originator of contentious messages. They have to also introduce a mechanism for voluntary verification of identity of users as a means to curb fake and anonymous posts on social media.
Companies will also have to set up automated tools to weed out certain kinds of messages and delete messages upon requests from users within 24 hours if the context is sexual in nature.
The new rules, which have been in the making since 2018, come close on the heels of a huge stand-off between the union government and micro-blogging platform Twitter over the American company’s refusal to block handles alleged to be fomenting unrest over the country’s recently announced farm laws.
Globally, the impact of these new regulations on digital companies will be closely watched since India is one of the world’s largest internet markets with over 700 million users.
Facebook said it will carefully study the new rules but maintained that it is committed to play an enabling role in the digital transformation of India. “We have always been clear as a company that we welcome regulations that set guidelines for addressing today’s toughest challenges on the Internet. Facebook is committed to people’s ability to freely and safely express themselves on our platforms,” said a representative for Facebook.
“We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms,” the person stated.
Google, Twitter, Signal and Telegram did not respond to ET’s request for comments.
Prasad said that there will be a category of “significant social media intermediaries” which will be required to appoint a Chief Compliance Officer, resident in India to ensure compliance with the rules, a nodal person of contact for 24×7 coordination with law enforcement agencies along with a “Resident Grievance Officer”.
The criteria for such companies which will be decided based on the number of users will be announced soon, he said. Also, they will be given an additional three months’ time to comply with the new rules.
“The googly in the rules is mandating Indian residents as chief compliance and grievance officers. One needs to look at whether this will create permanent establishment issues in India and increase tax burden on these companies. They may have to relook at their existing structure,” said Nikhil Narendran, a partner at law firm Trilegal.
Union information & broadcasting minister Prakash Javadekar, who announced that the expansion of the Press Council of India ( PCI) rules to accommodate online content is being worked upon, said issues relating to content, especially media, OTT and digital media will be administered by the I&B ministry. Monitoring of intermediary platforms (social media companies) will continue to be handled by the IT ministry, he said.
Experts believe the direct implication of the new rules that bring online news under PCI regulation will be that criminal proceedings can be initiated against online publishers if the content is found violating any law of the land and such content can also be taken down.
“Digital media portals have no right to spread rumours. Media’s freedom is absolute but with reasonable restrictions. We felt there was a need to create a level playing field. We are asking digital news portals to first declare their details and then follow the same PCI rules that are applicable to other news media,” the minister said.
The new norms governing news portals come at a time when the government is working at bettering its global ranking on the press freedom index.
Meanwhile, the code of ethics and self-regulation mechanism for video streaming services – popularly known as the over-the-top (OTT) players are also expected to have a far-reaching effect on the sector. While allowing for self-regulation, the government has tightened its grip over the redressal mechanism by forming a three-tier structure, where the individual players will have only one level of self-regulation mechanism.
“The rules are trying to regulate the more unsavoury features of social media and OTT content—pornographic content and fake news being the two most obvious problems. The real issue, which we will have to wait and watch, is to see how the rules are implemented and whether more bureaucratic supervision will lead to more stifling of freedom of expression,” said Nigam Niggehalli, Dean of BML Munjal University.
Privacy activists such as The Internet Freedom Foundation took to Twitter saying that “the first concern we are highlighting is the covert regulation of OTT and news media platforms through proxy. The draft IT Rules have defined a “Code of Ethics and Procedure and Safeguards in Relation to Digital/Online Media”.
“There are better ways to tackle such content than sliding down the slope of automated censorship & surveillance culture,” it added.
Arguing that introducing the requirement of traceability of the originator of information, will break end-to-end encryption, the forum stated that, “many platforms (WhatsApp, Signal etc.) retain minimal user data and use E2E encryption to provide privacy to users.”
Mayank Bidawatka, cofounder of home-grown microblogging platform Koo, meanwhile defended the scope of the regulations saying that it “helps clarify the responsibilities of intermediaries.”
“Enabling and maintaining freedom of speech is core to social media platforms. We will continue to work in the best interest of our users at all times and ensure that they have a great experience. At the same time, we are committed to abide by the laws of the land,” he said.