Having made something of a splash last month with the
fuss over Australia’s News Media Bargaining code,
Facebook, and the digital giants, are facing another stormy
front in India. The move here has nothing to do with revenue
so much as alleged bad behaviour. “We appreciate the
proliferation of social media in India,” stated
Ravi Shankar Prasad, India’s minister of electronics and
information technology. “We want them to be more
responsible and more accountable.”
Such
responsibility and accountability will purportedly be
achieved through the Information
Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021. They are part of a program that has
been incubating for some years. An IT industry consultant
advising the government expressed
the sentiment to Wired in 2018. “The
government’s message is: If you want to do business in
India, do it on our terms and conditions or you are free to
leave.” Previously, the Indian approach has been more
timorous. It had “always been ‘Do it the Apple way, do
it the Facebook way, do it the Amazon way.”
Behind
such rules is a crude, self-vested interest at work. The
primary role of social media lies in the sharing of
information. Governments tend to be happy with material they
can finesse, curate and control on such platforms. When the
platforms become home for material that challenges the
official version, stirring the blood of the citizenry or
encouraging misrule, problems emerge.
To make its
case, the Indian government has resorted to the marketing of
moral outrage. Over the last years, fake news has become
something of a favourite, the Zeitgeist driving the
regulatory truck. In 2017 and 2018, over
40 deaths due to mob violence were said to have arisen
from generously circulated disinformation. On July 1, 2018,
in the hamlet of Rainpada, five men, all members of the Nath
Panthi Davari Gosavi wanderers, were beaten to death. They
were victims of a rampaging mob incensed by rumours
circulating on WhatsApp that the area was crawling with
opportunistic child kidnappers.
The Indian authorities
duly asked
WhatsApp to assist in stopping the “irresponsible and
explosive messages” on its platform. Some actions were
taken. The number of forwards was limited to five at a time.
Those messages also sported a “forwarded” tag. This did
little to pacify government officials.
The scope of
the proposed changes is far from negligible. The draft IT
rules take aim at over-the-top (OTT) media services
responsible for content on such outlets as Amazon, Netflix
and Prime and news media platforms. Applicable entities
include “publishers of news and current affairs
content”; “intermediaries which primarily enable the
transmission of news and current affairs content” and
“publishers of online curated content”. Finally,
“intermediaries which primarily enable the transmission of
online curated content” are included.
The regulatory
framework will entail three tiers: self-regulation by the
entity itself; self-regulation through “self-regulating
bodies of the applicable entities” and an “Oversight
mechanism by the Central Government.” The creation of
“Chief Compliant Officers” by the companies is envisaged
as are “nodal” persons responsible for 24 hour
“coordination with law enforcement agencies and officers
to ensure compliance to their orders or requisitions made in
accordance with the provisions of law or rules made
thereunder.” Resident Grievance Officers will also have to
be appointed.
The introduction of this additional
layer of regulation will constitute a form of bureaucratic
strangulation, with the oversight mechanism open to
censoring content in a manner that goes even beyond the
current powers of the Ministry of Information and
Broadcasting for TV regulation.
The Internet Freedom
Foundation considers
the mechanism a calamity in waiting, breaching the digital
rights of citizens, causing economic harm “and [will] also
negatively impact India’s growing cultural influence
through the production of modern and contemporary video
formats entertainment.” In anticipation of the government
code, 17 OTT platforms have
already developed “self-regulation toolkits” which
risk embracing the genie of self-censorship.
The
incorporation of news media in the Code goes beyond the
ambit of current legislation and potentially exceeds the
safe harbour protections for intermediary platforms outlined
by section 79 of the Information Technology Act. That
section exempts intermediaries hosting material from
liability provided they follow various stipulated
guidelines. The draft rules, as they stand, circumvent due
process and parliamentary scrutiny through regulation. Media
would also be censored if the government were to take a
broad reading of the definition “publisher of news and
current affairs content”.
Prasad does not merely
want social media channels to be more diligent monitors and,
if necessary, censors. He is
clear that such digital platforms lend a hand in
identifying culprits who might be behind the dissemination
of information and be targets of government prosecution.
“We don’t want to know the content, but firms need to be
able to tell who was the first person who began spreading
misinformation or other objectionable
content.”
Sub-rule (2) of Rule 5 proposes to do
this, stating that the significant social media intermediary
primarily responsible for providing messaging services
“shall enable the identification of the first originator
of the information on its computer resource as may be
required by a judicial order passed by a court of competent
jurisdiction” or by “the Competent Authority” pursuant
to legislation.
The unacceptable content officials
have in mind is detailed in a government release. The
objectionable material would be the sort that relates to
Indian sovereignty and integrity, state security, friendly
relations with States, “public order or of incitement to
an offence relating to the above or in relation with rape,
sexually explicit material or child sexual abuse material
punishable with imprisonment for a term of not less than
five years”. Prosecutors will have much to play
with.
Breaking the resistance of companies such as
WhatsApp to traceability requests has been a central aim of
the Modi government, despite such proposals being dismissed
as ineffectual
in actually achieving their stated purpose. They are not the
only ones. End-to-end encryption is seen by states as a
technique for concealment, ripe for abuse, which is always a
mean spirited way of clamping down on digital sovereignty.
Countries such as the United States, the United Kingdom and
Australia fantasise about creating backdoors to content.
That very subject is being currently considered by the
Indian Supreme Court in the case of Antony Clement v
Union of India (TC Civil No. 189 of 2020).
The
emerging trend here is that, while such policy may fail to
achieve its stated goal, it will certainly be pernicious in
other ways, as any backdoor weakening of encryption or vital
escrow systems would breach privacy and security. Given that
encryption acts as a safeguard in the current digital
environment of data aggregation, while also deterring
identity theft and code injection attacks, the draft rules
look menacing.
Manoj Prabhakaran, Professor of
Computer Science and Engineering based at ITT Bombay,
suggests that States should do the opposite. In a furnished
expert report in the Antony Clement case, he
urges government authorities to “promote strong encryption
and anonymity. National laws should recognize that
individuals are free to protect the privacy of their digital
communications by using encryption technology and tools that
allow anonymity online.”
While the conduct of
digital platforms is monstrous in terms of their operating
rationale, not least their tendency to monetize privacy and
commodify predictive behaviour, government scapegoating is a
shallow distraction. The agenda of the Modi government is
moral stringency, surveillance and the monitoring of unruly
citizens. Breaking down the doors of encryption while
encouraging social media giants to regulate themselves into
censorship, is all in keeping with this theme.
Dr.
Binoy Kampmark was a Commonwealth Scholar at Selwyn College,
Cambridge. He lectures at RMIT University, Melbourne. Email:
bkampmark@gmail.com
