India’s new Social Media Regulations Explained by Aishwarya Sandeep, Legal Expert

Social Media
What are India’s new social media regulations all about? Why is Twitter so reluctant to comment on it? We have Aishwarya Sandeep, a legal expert to explain.

India is now fiercely fighting COVID-19 second wave. Also, the new epidemic Black Fungus and oxygen shortage in various states. In addition to the COVID-19 pandemic, Indian government is now fighting several other battles. Yes, the Government is fighting with American social media giant Twitter.

Government of India on 25 February 2021 gave three months deadline to all foreign social media platforms to adhere to the new social media regulations. Surprisingly, these platforms are hardly responding to the Government’s warnings.

Ironically, we have the liberal lobby and the opposition parties that are vouching for these platforms. The entire country was expecting to see a ban on Twitter at least. Do you ask why? Yes, even after the 25 May 2021 deadline to respond, nothing came from Twitter. But Facebook had put out a statement that it agrees to the rules.

On the other hand, Whatsapp on 26 May 2021 went on to sue the Government of India in Delhi High Court. In the petition it was mentioned that the new regulations are a threat to user data.

As common folks, some of us criticize the government and some of us back it. But, one thing cannot be denied i.e., a multi-national company cannot threaten/insult a democratic government this way.

So, what are the new regulations all about? Why is Twitter so reluctant to comment on it? To understand all this we need a legal expert. And Thought Habitat identified Aishwarya Sandeep, Founder of Second Innings Consultancy.

Aishwarya Sandeep

Edited excerpts:

We all thought Social media platforms would be banned today as per the deadline. We hear it didn’t happen because of some legal challenges. Could you please apprise us on those challenges?

Section 79 of the Information Technology Act, 2021 states

Exemption from liability of intermediary in certain cases –

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.

(2) The provisions of sub-section

(1) shall apply if-

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or

(b) the intermediary does not-

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

This section clearly gives an exemption to the Social Media Agencies, from their responsibility. Apart from any crime that is not initiated by these Social Media Handles, the Intermediaries, cannot be held responsible to share the details of the content that is hosted by them.

The problem is whenever, we talk about Social Media, the only thing that we talk about is about a few content creators and activist, who use the same, to raise their voice. But we also forget, there are a million other users, who get ripped off in the Social Media World. Just because of the stringent policies and lack of Laws governing the Social Media and Intermediaries, they are left scot free.

Whatsapp went on to sue Government of India saying the new act is not safe guarding user data. How is that possible?

During the lockdown, the number of fake messages that were circulated were at the peak. There were so many self proclaimed doctors and experts, who provided all sorts of treatment on Whatsapp and Facebook.

The amount of confusion with respect to the COVID-19 Lockdown rules that Whatsapp had caused was immense. So generally people just forward a message and forget about the same. Nobody bothers to check the authenticity of the message. The number of businesses that shut down during the COVID-19 Lockdown due to Fake messages cannot even be counted on your finger.

This is what had happened to a very popular brand WIBS Bread Factory. A Fake message was circulated in the Social Media that due to a worker being tested positive, the bread factory has been shut down. This message caused a huge panic in the minds of the minds of the people and probably WIBS lost out a lot of consumers also. If I were to initiate a criminal complaint for a fake message, Whatsapp could just plainly refuse to provide me the source of the fake message on the behest of end-end encryption.

When Whatsapp collects and stores third party Data, it ensures us that it will keep our Data secured and protected. Today, every single private conversation, that we have with our near and dear ones, is stored on the Whatsapp Server. It is true that we trust Whatsapp Server to protect our Privacy and that is the same stand that Whatsapp has taken, while filing this Petition at Delhi.

Till now, there is no explicit provision on Right to Privacy. Right to Privacy is not a Fundamental Right.

While the largest social media platform Facebook agreed on following the norms, Twitter is still mum on this. Aren’t they taking it seriously?

Facebook agreed to follow the norms because practically Facebook cannot afford to loose business in India. Facebook owns Whatsapp and they have already filed a Petition before the Delhi High Court regarding the protection of Right to Privacy and the new Laws. On one hand even if Facebook has agreed to follow the norms, on the other hand they are also challenging the same.

How long you think this fiasco will go on? Ain’t the IT Ministry capable of holding these folks responsible?

The problem is that we citizens are easily influenced by what is served before us. We do not think beyond what is put before us. Before answering your question, let me share some of my experience. A lot of IT Companies have their Servers, wherein the Data is stored in foreign Countries.

As a lawyer, I have come across a lot of cases of cyber pornography, which are never registered. Today, it is very easy for anybody to create a fake ID and send nudes to the front person. Most of the times, these ids have the profile picture of a women or of a flower or any generic image. The moment you accept the friend request, the first image that pops up in your message are unwanted ugly nudes, which you want to puke on.

The maximum solution that a common man has for this problem, which happens to almost every women is to report the ID to Facebook or Twitter and then they just block the profile. This may seem like a temporary relief but no criminal action is taken such a person. The story continues.

A lot of women/men, do not file police complaints because, they are not sure what the procedure is for the same. So if I were to file a Police Complaint for the same, the Police, may or may not have entertained my complaint. If it were a onetime offence, they would have most probably asked me to return home, if it were a repeated offence, they may file a criminal complaint.

Once the complaint is filed, the Police should immediately be able to call for the detailed records from the Social Media Handle, this should roughly take about one day max if we skip all the technical paper work, but instead it takes months, because the Government authorities have to get a Court Order to get data from private companies. These Intermediaries, use the same law to protect an accused.  This is a very small incidence that I have shared.

A lot of times, Social Media is used by terrorist and a lot of wrong doers to upload and share the encrypted data. Lack of Getting Data from these Intermediaries, have delayed a lot of investigations.

Yes, we are always concerned about Data Privacy and Data Protection and about social media handing out our Data to the Government. But, there are also a lot of things that the common man does not know.

A lot of crime, these days, have been committed by using Social Media. Technology definitely runs faster than Legal implementation. If you do not use have laws supporting them, then crime will simply increase manifold in a short span of time.

Keep watching this space for more such insightful updates.

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