The Ministry of Electronics and Information Technology (MeiTy) recently sent a letter to the India office of US tech major Apple, seeking the iMessage service comply with the new IT rules 2021, and subsequently withdrew the letter, raising several questions.
On what basis is the ministry deciding which social media intermediary gets classified as a Significant Social Media Intermediary (SSMI)? How is iMessage different from WhatsApp? Is there enough transparency in the process?
A ministry source spoke to The Indian Express, justifying all the reasons why Apple's iMessage does not have to comply with IT Rules.
The Quint decodes if the claims made by the MeiTy stands correct by speaking to: Apar Gupta, executive director of the Internet Freedom Foundation (IFF), Prasanth Sugathan, legal director at Software Foundation Legal Centre (SFLC) and IT law expert Advocate Satya Muley.
Claim :
Apple’s iMessage will not be considered a ‘social media intermediary’ as it is not “primarily or solely” an instant messaging service provider for enabling interaction between two or more users.
What Experts Say:
Sugathan explains that as per the definition given under the IT Rules, Apple's iMessage service/app should be categorized as a 'Social Media Intermediary' as it is an intermediary which "primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its service".
It is also worth noting that iMessage on its website clearly states that it is a message-exchanging platform that enables you to send texts, photos, or videos to another iPhone, iPad, iPod touch, or Mac over Wi-Fi or cellular-data networks.
Claim:
Several media reports have alleged that iMessage has less than 5 million users in India, due to which it does not fall under the scope of IT Rules.
What Experts Say:
According to a report by Techcrunch, which cites numbers from popular market research firms – Counterpoint and Cybermedia Research, Apple has succeeded in doubling its market share in the country.
There are more than 760 million smartphone users in India, and as per Statista, Apple's iPhone share in June 2020 was roughly 3.54 percent.
This indicates a roughly 27 million user base for iMessage in India. The iMessage service is available to anyone with an iPhone or Mac.
So, even if we assume that even one fifth of the iPhone population, about 5.4 million users in India, use iMessage or simply have the application turned on, then iMessage falls within the scope of the rules and must comply with the IT laws.
Sugathan mentions that if the number of users of the app has crossed the threshold, then it will have to comply with all the provisions of the IT Rules which are applicable to SSMIs.
Claim :
“Unlike other messaging apps like, say, WhatsApp, can anyone download iMessage on their phone and use it? If that logic is to be applied, even food delivery platforms, and especially gaming platforms provide an option of chatting with other gamers. Should they also be considered a social media intermediary then? The answer is no."
What Experts Say:
It is clear that Apple's iMessage is a messaging platform, and is end-to-end encrypted. It should also be noted that food delivery apps do not have the feature to chat with other users of the application.
Apar Gupta, executive director of the Internet Freedom Foundation told The Quint that since the definition of what falls under IT rules is clear, it does not make any sense to exclude iMessage from the ambit of applications falling under IT rules.
IT Rules 'Discriminatory'
The new IT rules 2021 are throwing up challenges to the SSMIs such as WhatsApp and Twitter but at the same time the implementation of the rules appears to be equally challenging to the Government of India.
Gupta believes that MeiTy's decision to declare iMessage as a non social intermediary is unfair to other applications. "I believe that the IT rules are written in a subjective manner, this represents the vagueness of the whole law itself. Such kind of case by case application by the ministry itself will lead to regulatory imbalance and a non level playing field."
In the instant example of Apple India, the ministry itself has given a lot of fodder to the opponents of the new IT rules.
Muley notes that if the IT rules are justifiable and implemented in an impartial manner, then Apple’s iMessage must get equal treatment like other platforms such as WhatsApp and vice versa.
"Otherwise, prima-facie one can conclude that certain provisions of the new IT rules are against the provisions of fundamental rights such as Article 14 - Equality, Equality Before Law and Equal Protection of Law, Fair and Transparent Procedure and Principles of Natural Justice which are guaranteed under the Constitution of India."Satya Muley, Advocate, Bombay High Court
Govt Can't Make Any Legal Request
All the legal experts pointed out that if Apple’s iMessage is not considered a social media intermediary, it will also mean that the rule related to identification of the first originator of the message shall not be applicable to the company.
Gupta explains that this decision will most likely impact user choice. "Users will give preference to applications such as iMessage, as it does not fall under the purview of IT rules.
"Since Apple is not considered as an SSMI, none of the obligations will apply to Apple hence the government won’t have the power to even make a legal request from the Apple", he adds.
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