Online Regulation Vests Excessive Authority With Govt: Apar Gupta

The government’s new social media regulation injured our right to speech and privacy, Apar Gupta explains

4 min read

Video Editor: Sandeep Suman


Announcing new rules for social media companies and a code of ethics for OTT streaming platforms and digital news media, Union Ministers Ravi Shankar Prasad and Prakash Javadekar, on Thursday, 25 February said they “are empowering the ordinary users of social media.”

The 30-page document, titled Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, define social media companies, suggest a three-tier mechanism for regulation of all online media, which confers blocking powers to an inter-ministerial committee.

Describing the rules as a “soft touch mechanism”, Union Electronics & IT Minister Ravi Shankar Prasad said they will be implemented in three months’ time.

A close reading of the Rules, however, indicates that they don’t “empower users” as much as they strip freedoms from online content platforms, particularly on what can be posted and what can be shown.

Apar Gupta, executive director, Internet Freedom Foundation explains and simplifies the new IT Rules for social media platforms, OTT streaming platforms and digital news and how that affects the online ecosystem in India and us, who use these services.

What Are Intermediaries & Why Are They Regulated?

Gupta explains these rules, under section 79 of the IT Act essentially view social media platforms as “ intermediaries” – who are essentially conduits or pipelines of internet content and not authors of content.

Intermediaries are entities that transmit, host, or publish content generated by us – the users – but do not exercise editorial control over it. Think of a Facebook, YouTube, or Twitter.

Therefore, Twitter cannot be held guilty for a hate speech published by an individual on its platform. Now, in order to enjoy this immunity, the government wants intermediaries to effectively monitor content even more closely..

“What the govt has done is, it has notified a level of compliance which goes beyond anything we’ve seen before,” Gupta said

Compromising End-to-End Encryption

The rules also has a “traceability” requirement which mandates significant social media intermediaries like WhatsApp to “enable the identification of the first originator of the information on its computer resource.”

“This kind of requirement breaks end-to-end encryption which means our private communication will not longer remain protected,” Gupta explains, adding “It makes sure that all our conversations that are now conducted privately will no longer have that protection, This causes something called self-censorship, a chilling effect.”

Gupta explains that under the regulations “the originator of each message, each time you message somebody is tied to the identity of the author.”

Deploying AI to Monitor Social Media Content

“The other big change is government requiring social media to use automated tools like AI and machine learning for proactive filtering of content,” Gupta highlighted.

The news rules require social media to “deploy technology-based measures, including automated tools” to filter out objectionable content like child sexual abuse. However, as history has shown, such tools not only suffer from major accuracy problems but also can lead to function creep.

The problem with automated machine learning tools, Gupta explains is “that they’re broken. They don’t get context. Words and images have very different meanings in different contexts and this what AI is not open to get.”

However, according to Gupta, this form of censorship is what the government requires through this regulation can lead large amount to content takedowns and lead to pre-censorship.

Regulating Digital News

“What is more concerning is new regulation has been brought in without any parliamentary debate for OTT platforms and digital news,” Gupta said.

The Code of Ethics have also been extended to digital news media. This appears to be problematic as the purview of the Information Technology Act, 2000, does not extend to news media. Importantly, the guidelines do not have the legislative backing to regulate news media.

Section 79 of the IT Act, within which these rules have been brought, applies to intermediaries who do not author or exercise editorial control over content. News media does not fall under this classification and the Act does not apply to them.

Under the new rules, news media will have to be part of a self-regulatory body.

Gupta further explains that the regulations will not only apply to digital news organisations but also to individual creators like Faye D'souza, Dhruv Rathee who create content on current affairs.

“The govt oversight over news media portals will be through a committee of serving civil servants

The information technology act applies to social media companies and should not be extended to news media
Apar Gupta, Executive director, Internet Freedom Foundation

OTT Streaming Platforms

“The same level of TV broadcast censorship is being brought in again for online video streaming platforms,” Gupta said.

Along with guidelines for social media platforms, the rules also contain within them a ‘Code of Ethics’ for OTT streaming platforms as well as digital news outlets. At the outset, the move to regulate OTTs within the same rules meant for internet intermediaries appears to be regulation through proxy.

Highlighting the primary concern with the new changes to the IT Rules Gupta states “these models of regulation are vesting excessive authority within the government.”

This will impact all of us. We will not be able to watch our favourite shows because this is also subject to an oversight process which again turns to civil servants from different government ministries.
Apar Gupta, Executive director, Internet Freedom Foundation

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