Digital and Internet Legislation: Forecasting The Future
This Blog is written by Saptaswara Chakraborty from North Eastern Hill University, Meghalaya. Edited by Ravikiran Shukre.
Internet, which started as a network to communicate with computers of every other existing institution, has slowly crept into a dangerous space of privacy and safety. It has been seen as one of the agents that would, slowly, be responsible for a possible war, if, is not regulated. The primary form and manner in which the internet functions can mainly be attributed to how it allows the data to be produced, collected and then distributed. The information that we provide which may be as simple as a search word to our location, are all stored and collected to provide related results which would ultimately suit us. Therefore, what we see is a constant exchanging of personal information.
Internet over the years has become an integral part of our lives, especially in the last 5-6 years, which mainly can be attributed to the affordable data rates in India. This has resulted in India being one of the top three countries in the world which has the highest Internet users. With such a population whichever more so is increasing, there lies a critical responsibility on the part of the government to legislate laws that will protect its citizens and would also see that any obnoxious content on the themes of vulgarity, violence and hatred does not get promoted.
Before starting with the complexity of the digital platform and its legislation, it is important to understand what constitutes a digital platform. A digital platform may be seen as an electronic tool that is meant for communication which may vary from desktop, mobile to social media platforms such as Twitter, WhatsApp, Instagram, etc. The communication can be done for various purposes, such as interactive to transactional, depending upon the setup of such a platform.
NEED OF LEGISLATION:
With the increase in the usage of the internet and its increasing popularity, there has been a rapid increase in the use of it for public disruptions, violence and hate speech. From the infamous case of “Dadri Mob Lynching” to the “Kathua rape case”, digital platforms had been at the forefront of spreading this fire to the extent that it became a national conflict. Similarly, the Delhi Riots which saw the riot between the Hindu and Muslim communities claimed 53 lives within a week. Several videos and live streams were found to be responsible for the severity of the violence and how it spread like a wildfire. All of these incidents show one common linkage and that is the digital media, hence the need for its regulation also becomes important.
At present, these digital giants such as Instagram, Facebook and Twitter are no longer a platform meant only for entertainment purposes, but rather have metamorphosed into an arena that caters to trade and commerce while also providing a space for people to express their opinion. In recent times, election campaigns as well have taken the recourse of social media for its reach and its popularity. Leaders around the world have started using these platforms to express their view, reach the masses and at the end of the day reaching the heart of a country’s population. Hence, they should now be seen as platforms that have a high influential capacity to change the discourse of a country.
Similarly, content-driven platforms have also emerged as one of the increasingly popular platforms especially after the recent outbreaks of the Covid-19 pandemic. The OTTs previously were streaming platforms that showcased the pre-existing content that was released, it now has begun the production of its content. So each OTT platform has the shows that are being produced by it independently. Hence, it came across as a paradise for content creators as it was debarred from regulations and censorships. While the independence of such a platform has nonetheless brought out the creative masterpieces, it has also led to problems and concerns about the lack of transparency, accountability and the misuse of the rights of the users.
The increased dependence on social media and other digital platforms has therefore led to the need for the existence of such legislation which would regulate these platforms.
IMPACT OF THESE LEGISLATIONS:
The presence of digital and internet legislations in India has still not established a firm ground. It is still developing and in the process of being implemented. At present, few laws regulate the content available online. The provisions under this area include Sections 67A, 67B, 67C of the Information Technology Act, 2000 (IT Act).
The main aim that can be seen or inferred from the proposed or enacted legislation is to ensure a secured digital space. This can also be seen from the above-mentioned sections which provide for a penalty as well as imprisonment on any person if he or she is found to be guilty of transmitting or publishing any such obscene material that would depict women and children in sexual acts. Also, the Government is vested with the power to issue directives to block certain information from intermediary “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognisable offence relating to above”. Up until 2020, the various many platforms had signed a self-regulatory code, the ‘Code of Best Practices for Online Curated Content Providers’ released by the Internet and Mobile Association of India (IAMAI). But the existence of this platform has in itself raised the question of accountability and responsibility.
Recently, the Ministry of Information and Broadcasting, Government of India on 25th February, enacted the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021“). The impact of this enacted legislation that the Government aims to achieve is accountability and a redressal system. If the legislation is implemented, it would ensure that the complaints it received, would be addressed within a limited period as has been specified in the enacted legislation.
Under Chapter XI of the Act, Section 65, 66, 66A, 66C, 66D, 66E, 66F, 67, 67A and 67B contain punishments for digital-related offences which has the capability of being committed through social media. Also, section 69A grants power to the Central Government to issue directions to block the public access of any information through any computer resources on similar ground. Up until recently, the intermediary liability was regulated under the earlier Information Technology (Intermediary Guidelines) Rules 2011.
Section 79 provided for the liability of an intermediary. According to it, an intermediary shall not be liable for any third party information, data or communication link made available or hosted by it for the situations that have been listed by the said section. However, after the recent enactment of the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021“), this shall not remain. According to it, a three-level redressal mechanism is required to be set up by the digital bodies.
• In the first level, a self-regulatory body is required to be set up by the publishers. Under this, a Grievance officer is required to be appointed to deal with the complaints from the victim or the user and even the name and contact details of such officers must be shared by such intermediaries.
• The second level comprises the publisher to address the grievances within a 15 days’ time period.
• Thirdly, the Oversight mechanism is to be formulated by the Ministry of Information and Broadcasting.
The main aim of this for the intermediary to observe due diligence and a grievance redressal system to empower the social media user.
Digital platforms and the digital space have until now enjoyed complete autonomy, however with the ever-increasing dependence on these platforms, it must also be ensured that accountability and transparency are maintained. The digital platforms though have provided and excelled the way we live and work, has also influenced the way society works. However, this very nature is the cause for stricter regulation. Some of the concerns that the government has include national security, protection of minors, protection of human dignity, economic security, and information security. But it must be ensured that freedom of speech and expression is not violated. The landmark case of Shreya Singhal v. UOI (2015), also saw the Supreme Court ruling that user-generated content cannot be censored until there is a direct incitement to violence. Similarly, the Karnataka High Court in Padmanabh Shankar v. UOI (2019), pointed out that the content aired over OTT platforms are not exhibitions and hence should not be censored on the reasoning of it violating social interests.
As the population of a country becomes more active with the digital platforms, it becomes imperative on the art of the government to regulate these bodies, to ensure a safer digital space. Both the government and the digital platforms also must work in consonance to ensure an effective result.