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IT Rules 2021: why is WhatsApp suing the Indian government?

WhatsApp, the Facebook-owned social messaging platform, has filed a legal complaint against the Indian government. The company has sued the government of India in the capital New Delhi seeking to block the social media regulations. The lawsuit asks the Delhi High Court to declare the new rules as violation of user privacy.

Also Read: WhatsApp users who don’t accept new privacy policy will not be able to access their chat list

The new social media rules enacted by the Indian government were set to go into force today, i.e., on May 26th, 2021. While Google and YouTube have announced plans to comply with these new rules, Facebook raised concerns. The social media giant initially said that it plans to comply, but at the same time confirmed that it is discussing issues. In contrast to speculation, Facebook, Twitter and other social media platforms won’t be banned in India today.

WhatsApp files lawsuit against Indian government

The Centre had notified social media channels about the new rules on February 25th, 2021 and gave them three months to comply. With the three-month window having expired, social media platforms are going the legal route.

According to Reuters, the lawsuit particularly objects to the rule requiring platforms like WhatsApp to identify the “first originator of information” when authorities demand it. The Intermediary Guidelines and Digital Media Ethics Code Rules 2021 requires WhatsApp to unmask people credibly accused of wrongdoing. However, WhatsApp objects that it cannot do so for individuals without breaking end-to-end encryption.

WhatsApp says that unmasking any individual would break end-to-end encryption for both the sender and receiver. In other words, it will unmask everyone including the originator of the message. Reuters notes that it could not independently confirm the complaint filed by WhatsApp in court. It is not clear when the matter will be reviewed by the court.

IT Rules 2021: what is it?

The government of India introduced the Intermediary Guidelines and Digital Media Ethics Code Rules 2021 on February 25th, 2021 as a way to bring “accountability against its misuse and abuse”. However, the rule has far reaching implications that can affect user privacy and might even be used for oppression of speech in the country.

The Internet Freedom Foundation argues that these rules largely undermine the privacy of internet users in India. The Intermediary Rules are structured into three parts where Part I defines various terms. Part II deals with regulation of intermediaries, mainly those companies related to social media. With Part III, the government is laying down rules for digital news media and OTT platforms.

While the government advocates the rule as empowerment of ordinary users of social media, some of the rules proposed in the guidelines go against the very basic tenets of social media platforms. The most controversial element is the one that WhatsApp is opposing, which kind of asks for a back channel to all end-to-end encrypted messages. It is important to note that platforms like WhatsApp cannot break end-to-end encryption for a single message or a particular originator of a message.

If or when they break encryption, they technically put everyone using the platform at risk. One of the key requirements of the IT Rules 2021 is to appoint an Indian citizen as a resident grievance officer. This is something which most social media companies are willing to do but are probably struggling to appoint someone in such a short notice.

The resident grievance officer, for these social media platforms, should be bipartisan and address the concerns without taking sides. To appoint such a person, these companies would need to adhere to a superior vetting process, which could take time. The rule also advocates for a larger grievance redressal mechanism and active monitoring of content on the platform.

The IT Rules 2021 also dictates these social media platforms to set up expedited processes to take down certain content including revenge porn. In addition to a responsive grievance system, the rule requires monthly compliance reports for Indian users, self-regulation mechanisms and an oversight mechanism created by the Ministry of Electronics and Information Technology.

Grievance Redressal System: key requirements

The new IT Rules 2021 require all the digital media platforms to set up a larger grievance redressal system. The key players in this grievance redressal system will be a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer. In the past few months, we have seen government requests for takedown of posts critical of it. We have also seen widespread misinformation, which could be curtailed with this system.

The rules mandate digital media platforms with over 5 million users to publish these details on their apps and websites. The rules also mandate these platforms to explain the mechanisms in place to make a complaint against any content on the platform. The digital media platforms are required, according to IT Rules 2021, to acknowledge the receipt of these complaints within 24 hours.

The complaints need to be actioned upon within a period of 15 days from the date of receipt. The bedrock of modern internet driven by user generated content is platforms not taking any hit for hosting these content. While they take actions against certain content, they get a certain freeway as defined by Section 230 of Internet legislation in the US. The rules are broadly adopted but even US legislators are arguing to strip these social media platforms from the immunity for websites from third-party content.

In the case of IT Rules 2021, these are no exceptions except for “any content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual“.

What is the role of Chief Compliance Officer?

The Information Technology Rules 2021 describes the role of Chief Compliance Officer as a “key managerial personnel or such other senior employee of a significant social media intermediary who is resident in India.” In other words, the rule mandates all digital platforms to appoint a person based out of India to a key position that will look into compliance with the rules.

What happens if social media companies don’t comply with IT Rules 2021?

At the time of writing, most of the major social media companies and digital platforms have agreed to comply with the rules. However, companies like Facebook are also seeking some changes to the rules. While these matters are being discussed, the subsection 1 of the section 79 of the IT Rules 2021 sheds light on what happens if these digital media companies don’t comply with the rules.

When an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable for such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.

Section 79, like Section 230 in the US, gives digital media platforms such as Facebook, Twitter, YouTube and others legal immunity against liability for posts made by users on their network. In the case of non-compliance with IT Rules 2021, these companies will be stripped of this immunity and they might find themselves in trouble for content on their platforms.

IT Rules 2021: what is the impact on WhatsApp or Facebook users in India?

If you are a WhatsApp or Facebook or YouTube user in India then don’t worry, the new rules won’t impact how you interact with these services. Most importantly, these platforms won’t stop working for you. However, the rules put a new onus on users to adhere to community guidelines. With or without the law, it is always a sane idea to think before you forward any message on WhatsApp.

It is always advisable to read a story before sharing it on Facebook or Twitter. With the new IT rules, users might be held responsible for offensive or dangerous content posted by them. On the bright side, users get a grievance redressal system where these companies are required to respond to your query within a stipulated period of time. While platforms are held to a higher standard, users are also expected to stay responsible.

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