Liberty is not synonymous with licence and, for a democratic society to survive, a fine balance has to be struck between respect for privacy of individuals and the right to free speech, and regulations have to be enacted to prevent misuse of social media platforms to foment hatred between communities or endanger national security. It is such a requirement for balance which makes one welcome, with provisos, the draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, for social media platforms, OTT players and digital media, announced by the Ministry of Electronics and Information Technology (MeITY). On the face of it the Government wants to empower users of social media and other intermediaries by mandating the associated companies to put in place a Grievance Redressal Mechanism with a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer who shall be responsible for ensuring compliance with the Act and Rules and address complaints from users. However, the rules also require companies to keep track of the ‘first originator’ of a message. This means that social media platforms like WhatsApp, Signal, Telegram and Wire, which are end-to-end encrypted, would have to dilute their encryption policy in India whenever they are required to comply. While such a requirement will certainly help individual users who feel aggrieved, the basic problem would arise when the Government itself chooses to become the ‘aggrieved’ party.
The rules stipulate that social media platforms must disclose the first originator of any tweet, post or message related to security and sovereignty of India, public order, or with regard to rape or any other sexually explicit material, which can be deemed to be mischievous. As asserted by the MeITY Minister Ravi Shankar Prasad, the Government was not interested in the content of any mischievous message, but would want to know who started the ‘mischief’ in order to take suitable action. This, specifically, is the nub of the matter, for who, indeed, would be the judge of what is mischievous or not? As exemplified by the recent arrest of 22-year-old climate activist Disha Ravi, often it is the police, no doubt supported by political elements, who become the arbiter of so-called anti-national postings, thus such a provision more likely as not is liable to be misused by the powers that be to curtail dissent and freedom of speech. The regulations for OTT platforms are routine and sensible, with the emphasis being on self-regulation, and classification of age groups rather than downright censorship that had once been the bane of the Indian movie industry. Similar self-regulatory requirements have been laid down for publishers of news on digital media, who would have to voluntarily observe ‘Norms of Journalistic Conduct’ so as to provide a level playing field between the offline (print, TV) and digital media.