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IFF analyses new social media Ethics Code and digital media rules

Raises concerns about how the new rules allow a virtual backdoor entry for government surveillance and censorship

Sabrangindia 26 Feb 2021

new social media Ethics Code and digital media rules

The Internet Freedom Foundation (IFF) has delved deep into the recently released Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and has raised several red flags about privacy and censorship. The code was announced yesterday and covers social media platforms, digital media including news and even has rules for OTT platforms.

While the Ministry of Electronics and Information Technology (MEITy) will oversee the implementation in Social Media, the Ministry of Information and Broadcasting (MIB) will oversee digital media.

Ever since the announcement, especially its tone and tenor and usage of words like, “Social media platforms welcome to do business in India but they need to follow the Constitution and laws of India,” there have been widespread concerns primarily pertaining to misuse of the provisions to scuttle dissent and privacy. Here’s IFF’s analysis of exactly how it impacts users and service providers.

Traceability and pending litigation

IFF, which has been advocating for making social media platforms safer without compromising on privacy features for several years, has raised major concerns with the provision for traceability. IFF says, “One of the contentious provisions which had been proposed by MeitY in the December 2018 version and which also features in the latest 2021 version of the draft Rules relates to traceability of originators of information on the internet.”

IFF reminds how this matter is still in courts, “The issue of traceability of originators of information on messaging platforms is also the subject of litigation before the Supreme Court in Antony Clement Rubin v. Union of India (T.C. Civil No.189 of 2020). This case originated as a PIL before the Madras High Court seeking linking of Aadhaar with social media accounts. However, during the course of hearings before the Madras High Court, the focus shifted to traceability of originators of information on end-to-end encrypted platforms such as WhatsApp, and the case was later transferred to the Supreme Court.”

It adds, “IFF is an intervenor in this case and we have filed an independent expert report authored by Dr. Manoj Prabhakaran, Professor of Computer Science and Engineering at IIT Bombay, which explains the long-term ineffectiveness of proposals to facilitate traceability on end-to-end encrypted platforms.”

Moreover, the draft IT Rules, 2021 have, under sub-rule (2) of Rule 5, made it mandatory for a significant social media intermediary providing services primarily in the nature of messaging, such as Whatsapp, Signal, Telegram etc., to enable the identification of the first originator of the information. IFF says, “This introduces the requirement of traceability which would break end-to-end encryption.” It reminds of how the Report of the Justice Srikrishna Committee on Data Protection had also criticised the government for mandating low encryption standards in license agreements with telecom service providers because “this poses a threat to safety and security of the personal data of data principals.”

IFF issues a chilling warning, “We do not have any proper parliamentary oversight or judicial check on surveillance, and the latest draft rules, if they go through, would be a tremendous expansion in the power of the government over ordinary citizens eerily reminiscent of China’s blocking and breaking of user encryption to surveil its citizens.”

Censorship

IFF raises concerns about regulating content on OTT platforms like Netflix, Amazon Prime etc. and even gives examples of the ongoing Tandav controversy where the Allahabad High Court has recently denied pre-arrest bail to Amazon executives.

IFF explains how government censorship has been accorded a virtual backdoor entry in the rules, calling it “grossly unconstitutional”. It says, “The draft IT Rules, 2021 have, in the Appendix to the Rules defined a ‘Code Of Ethics And Procedure And Safeguards In Relation To Digital/Online Media’ which shall apply on ‘applicable entities’. ‘Applicable entities’ as contained in Rule 7 include, ‘publishers of news and current affairs content’; and ‘intermediaries which primarily enable the transmission of news and current affairs content’; and ‘publishers of online curated content’; and, ‘intermediaries which primarily enable the transmission of online curated content’.”

It also points out, “Further, under sub-rule (3) of Rule 8, the Rules lay down a three-tier structure for observance and adherence to the Code which is as follows, ‘Level I - Self-regulation by the applicable entity’; ‘Level II - Self-regulation by the self-regulating bodies of the applicable entities’; ‘Level III - Oversight mechanism by the Central Government’.” IFF asks, “What does this mean? In all likelihood, government oversight and more censorship.”

IFF says, “This oversight mechanism is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation. For instance, as per Rule 13(4) this also now includes powers of censorship such as apology scrolls, but also blocking of content! All of this is being planned to be done without any legislative backing or a clear law made by parliament.”

Threat to independent digital news media

IFF Illustrates how the new provisions are an over-reach by the government in the absence of any legislation. IFF says, “The purview of the Information Technology Act, 2000 does not extend to news media, and so the guidelines do not have the legislative backing to regulate news media. Thus, these Rules are exercising powers far beyond the parent legislation. Additionally, these guidelines are ultra vires section 79 of the IT Act, which provides a ‘safe harbour’ through an exemption from liabilities in certain cases.” It adds, “This makes these guidelines a camouflaged way to indirectly regulate online news media by bringing these platforms under the aegis of the Information Technology Act, 2000 instead of following the due process of parliamentary scrutiny and subsequent legislation.”

IFF also highlights how the ambiguity surrounding definition of “publisher of news and current affairs content” can be misused. It says, “This vagueness in definition would allow arbitrariness by the government in the exercise of significant discretionary powers and would allow them to censor media at their pleasure. Such a definition also privileges the established media houses, who may have a print newspaper as a significant component of their operations and could thus claim to be exempted from these guidelines. Smaller and independent media houses on the other hand may not have the luxury to do so, and instead rely on the internet to disseminate news and information. This discriminatory approach between online news media and traditional print newspapers and legacy media will place additional responsibilities on the former on the basis of an ambiguous definition that lends itself to confusion and uncertainty, and thus potentially stifle independent online news media.”

Related:

Ethics Code for Social Media, rules for OTT platforms, online news

Tandav case: Allahabad HC denies pre-arrest bail to Amazon India Originals Head

Allahabad High Court protects Mirzapur series makers from arrest

IFF analyses new social media Ethics Code and digital media rules

Raises concerns about how the new rules allow a virtual backdoor entry for government surveillance and censorship

new social media Ethics Code and digital media rules

The Internet Freedom Foundation (IFF) has delved deep into the recently released Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and has raised several red flags about privacy and censorship. The code was announced yesterday and covers social media platforms, digital media including news and even has rules for OTT platforms.

While the Ministry of Electronics and Information Technology (MEITy) will oversee the implementation in Social Media, the Ministry of Information and Broadcasting (MIB) will oversee digital media.

Ever since the announcement, especially its tone and tenor and usage of words like, “Social media platforms welcome to do business in India but they need to follow the Constitution and laws of India,” there have been widespread concerns primarily pertaining to misuse of the provisions to scuttle dissent and privacy. Here’s IFF’s analysis of exactly how it impacts users and service providers.

Traceability and pending litigation

IFF, which has been advocating for making social media platforms safer without compromising on privacy features for several years, has raised major concerns with the provision for traceability. IFF says, “One of the contentious provisions which had been proposed by MeitY in the December 2018 version and which also features in the latest 2021 version of the draft Rules relates to traceability of originators of information on the internet.”

IFF reminds how this matter is still in courts, “The issue of traceability of originators of information on messaging platforms is also the subject of litigation before the Supreme Court in Antony Clement Rubin v. Union of India (T.C. Civil No.189 of 2020). This case originated as a PIL before the Madras High Court seeking linking of Aadhaar with social media accounts. However, during the course of hearings before the Madras High Court, the focus shifted to traceability of originators of information on end-to-end encrypted platforms such as WhatsApp, and the case was later transferred to the Supreme Court.”

It adds, “IFF is an intervenor in this case and we have filed an independent expert report authored by Dr. Manoj Prabhakaran, Professor of Computer Science and Engineering at IIT Bombay, which explains the long-term ineffectiveness of proposals to facilitate traceability on end-to-end encrypted platforms.”

Moreover, the draft IT Rules, 2021 have, under sub-rule (2) of Rule 5, made it mandatory for a significant social media intermediary providing services primarily in the nature of messaging, such as Whatsapp, Signal, Telegram etc., to enable the identification of the first originator of the information. IFF says, “This introduces the requirement of traceability which would break end-to-end encryption.” It reminds of how the Report of the Justice Srikrishna Committee on Data Protection had also criticised the government for mandating low encryption standards in license agreements with telecom service providers because “this poses a threat to safety and security of the personal data of data principals.”

IFF issues a chilling warning, “We do not have any proper parliamentary oversight or judicial check on surveillance, and the latest draft rules, if they go through, would be a tremendous expansion in the power of the government over ordinary citizens eerily reminiscent of China’s blocking and breaking of user encryption to surveil its citizens.”

Censorship

IFF raises concerns about regulating content on OTT platforms like Netflix, Amazon Prime etc. and even gives examples of the ongoing Tandav controversy where the Allahabad High Court has recently denied pre-arrest bail to Amazon executives.

IFF explains how government censorship has been accorded a virtual backdoor entry in the rules, calling it “grossly unconstitutional”. It says, “The draft IT Rules, 2021 have, in the Appendix to the Rules defined a ‘Code Of Ethics And Procedure And Safeguards In Relation To Digital/Online Media’ which shall apply on ‘applicable entities’. ‘Applicable entities’ as contained in Rule 7 include, ‘publishers of news and current affairs content’; and ‘intermediaries which primarily enable the transmission of news and current affairs content’; and ‘publishers of online curated content’; and, ‘intermediaries which primarily enable the transmission of online curated content’.”

It also points out, “Further, under sub-rule (3) of Rule 8, the Rules lay down a three-tier structure for observance and adherence to the Code which is as follows, ‘Level I - Self-regulation by the applicable entity’; ‘Level II - Self-regulation by the self-regulating bodies of the applicable entities’; ‘Level III - Oversight mechanism by the Central Government’.” IFF asks, “What does this mean? In all likelihood, government oversight and more censorship.”

IFF says, “This oversight mechanism is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation. For instance, as per Rule 13(4) this also now includes powers of censorship such as apology scrolls, but also blocking of content! All of this is being planned to be done without any legislative backing or a clear law made by parliament.”

Threat to independent digital news media

IFF Illustrates how the new provisions are an over-reach by the government in the absence of any legislation. IFF says, “The purview of the Information Technology Act, 2000 does not extend to news media, and so the guidelines do not have the legislative backing to regulate news media. Thus, these Rules are exercising powers far beyond the parent legislation. Additionally, these guidelines are ultra vires section 79 of the IT Act, which provides a ‘safe harbour’ through an exemption from liabilities in certain cases.” It adds, “This makes these guidelines a camouflaged way to indirectly regulate online news media by bringing these platforms under the aegis of the Information Technology Act, 2000 instead of following the due process of parliamentary scrutiny and subsequent legislation.”

IFF also highlights how the ambiguity surrounding definition of “publisher of news and current affairs content” can be misused. It says, “This vagueness in definition would allow arbitrariness by the government in the exercise of significant discretionary powers and would allow them to censor media at their pleasure. Such a definition also privileges the established media houses, who may have a print newspaper as a significant component of their operations and could thus claim to be exempted from these guidelines. Smaller and independent media houses on the other hand may not have the luxury to do so, and instead rely on the internet to disseminate news and information. This discriminatory approach between online news media and traditional print newspapers and legacy media will place additional responsibilities on the former on the basis of an ambiguous definition that lends itself to confusion and uncertainty, and thus potentially stifle independent online news media.”

Related:

Ethics Code for Social Media, rules for OTT platforms, online news

Tandav case: Allahabad HC denies pre-arrest bail to Amazon India Originals Head

Allahabad High Court protects Mirzapur series makers from arrest

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