The forecast after a fake news campaign in Tamil Nadu

Recently India witnessed an incidence of spread of fake news and subsequent law and order situation in the state of Tamilnadu. As most of the information in India is consumed through social media sources , fake news and its propagation poses biggest threat to democracy as well as internal security of India. 

Regulations abroad

• The European Union (EU) – It has come up with the Code of Practice on Disinformation 2022. Some of the strengthened initiatives of the EU Code include transparency in political advertising, empowerment of fact­checkers and researchers, tools to flag disinformation, and measures to reduce manipulative behaviour. 
• The United Kingdom - It has proposed enacting an Online Safety Bill which will expect social media platforms (intermediaries) to actively monitor problematic content. 
• China - China has some of the strictest laws in the world when it comes to misinformation.
• France – It passed a legislation in November 2018; this legislation provides for definition of “Fake News”. The legislation gives authorities the power to remove fake content spread via social media and even block the sites that publish it.
• Germany - It Has a law, titled  (NetzDG), which forces online platforms to remove “obviously illegal” posts within 24 hours or risk fines of up to €50 million.

Regulations in India

• India does not have a robust and exclusive framework for curbing the menace of the fake news.
• However government by the use of Section 69A of the Information technology Act, 2000, has granted itself greater power to strike down any unpalatable content. 
• Government has come up with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 , or IT Rules, 2021 to regulate content by online publishers of news and social media intermediaries.
• The recent draft amendments to the IT Rules, 2021, empowers the Press Information Bureau, which functions under the Union Ministry of Information and Broadcasting to ‘flag inaccurate and fake news related to government bodies on social media platforms’ amounts to disinformation.

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS) RULES, 2021

Ministry of Electronics and Information Technology (MEITY) has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules, 2021 to regulate IT intermediaries such as Twitter, Facebook and digital media outlets. While many IT intermediaries have complied to these rules Twitter has failed to comply with them.

NEED FOR REGULATING IT INTERMEDIARIES

• IT intermediaries and social media sites have come to play a prominent role in the globalised era as it provides a forum for citizens across the globe to share information and ideas in real time.
• IT intermediaries contend that the information posted by users on them is by citizens and they do not have any liability as the information posted is so large pool of people and from across the globe.
• Communications Decency Act of USA gives immunity to social media platforms for content posted on them. In India, the IT (Intermediary Guidelines) Rules, 2011 gave this immunity to social media platforms.
• The present rules update the earlier rules and introduce a soft touch self-regulatory mechanism for use of the social media.

This is justified since:

(a) Similar protection is not available for newspapers, magazines or websites. Social media companies have argued that they do not have editorial control to regulate control. However, social media companies have increasingly carrying out interventions to regulate content. E.g., Banning posts of President Trump of USA.

(b) Freedom of speech under the constitution is subject to reasonable restriction Article 19(2). Thus, social media platforms too can be regulated under the Constitutional scheme.

(c) Due to growing importance of social media platforms, they can be considered as a public utility serving a public function. Hence, some sort RIGHTS & RESERVATIONS of regulation is necessary from security point of view.

(d) To check the misuse and protection of citizens.

(e) Right of the sovereign to regulate communications.

CONCERNS HIGHLIGHTED ON IT RULES

• Privacy versus National Security - The rules only make superficial attempts at balancing privacy and security interests as security interests are being given primacy over both civil liberty interests as well as economic interests.
• Breaking End-to-end Encryption - The traceability obligation in the new rules is problematic as it would amount to breaking end-to-end encryption provided for all users on platforms such as WhatsApp. This will give greater powers of surveillance to state over personal affairs of citizens and tantamount to interference in right to privacy.
• Data Theft & Hacking - Breaking of end-to-end encryption will increase chances of data theft and hacking.
• Traceability clause capable of misuse - The rule as it’s currently drafted is vague and this allows the government to use traceability power in a broad way and therefore open to misuse. Thus, to use traceability powers, court must clarify the grounds and circumstances for its use by state authorities.
• Guidelines against law on Subordinate Legislation - Ability to issue rules under a statute or law, to frame subordinate legislation, is by its nature a limited and constrained power. The current rules go beyond the realm of Information Technology Act, and thus in the garb of rulemaking, government has rather come up with primary set of legislation.
• Rules have created new term in the Parent Act: Executive has created new term “significant social media intermediaries” which has not been defined in the Information Technology Act, 2000.
• Limited Purview of IT Act - Regarding digital news and media portals, the purview of the Information Technology Act, 2000, is limited. It only extends to the blocking of websites and intermediary liabilities framework but does not extend to content authors and creators.
• Rules have added New Chapter on Registration of Digital News Sites before the Ministry of Information and Broadcasting. Such provisions are absent in the parent Act.Pressure on Tech Companies - Platforms can also be arm-twisted into building in what’s called weakness by design into their product.