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Fallacies in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

by teamscool
Fallacies in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

February 26, 2021

The Government of India recently came up with a new draft that will change the way intermediaries' function in the digital realm. Not only does this draft tamper with the way content is regulated on social media platforms, but it also encompasses Over-The-Top (OTT) platforms and digital news portals under the bounds of regulations.

In this article, we bring to you everything that is wrong with the hasty way such a draft is being enacted and shine a light on the biggest elephant in the room: are we progressing towards becoming a surveillance nation?

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Government of India announced some new rules regarding OTT platforms.

Surveillance Nation and Digital Rights

With the internet becoming such an indispensable part of our lives, and even the Kerala High court recognising the right to access the internet as a fundamental part of Article 21 (Faheema Shirin V State of Kerala), one assumes that the government would work for the benefit of the citizens and reduce the malpractices brought in by the increased convergence of technology and society. The shift from the physical sphere to the digital realm has been a gradual one, but owing to the COVID-19 pandemic, it got a massive boost.

In such a time where the virtual space is still at a nascent stage in becoming such a large part of our daily lives, a transition into the same should not mean the alienation of our fundamental rights. When India’s constitution was being made, it guaranteed its citizens the freedom of speech and expression. In those times, they couldn’t have possibly foreseen such a right unfolding in digital spheres, but the interpretation of subjecting such freedom to ‘reasonable restrictions’ was left to be dynamic.

When the internet is unevenly distributed, relying on artificial intelligence, location, and biometric data can amplify social and racial injustices. The rapid increase in the usage of the internet, for things like communication surveillance, the spread of hate speech under the mask of anonymity, and unsolicited marketing, to name a few, endanger the rights bestowed upon us by the makers of our constitution.

Media Ethics Code

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Government applied some media ethics and censorship to the OTT platforms.

Most citizens neglect their digital rights owing to a lack of awareness, mostly thinking that there’s nothing in their life significant enough that can be used against them or worth hiding, which is why there is a normalisation of government’s interference in an individual’s privacy. The problem with this normalisation is that constant surveillance leads to self-censorship. Research has proven that humans tend to self-censor and omit activities that they would otherwise do in the absence of continuous monitoring. Such powers in the hand of the government give rise to authoritarian tendencies.

Where is the digital insecurity stemming from?

The government in power is infamous for the way it handles matters relating to the digital sphere. Starting from regular internet shutdowns to ordering penal actions against activists voicing their opinions on social media, this government has done it all. Progressing from the need to curb hate speech to wanting to establish dominance over intermediary platforms like Twitter (which refused to block apparent 1,100 ‘anti-national’ content sharing accounts on its platform), the new draft makes the future of digital platforms seem like nothing but a mouthpiece for the government to voice its opinions.

The bill stems from the rise in ideological differences that are often termed ‘anti-national’. The fine line between criticising the government and being loyal to the constitutional mandate has slowly disappeared. The government has even started looking for volunteers in the states of Jammu and Kashmir and Tripura who’d report ‘anti-national’ content. Not only this, but the police in the state of Uttrakhand announced that it would stop verifying passports of individuals who post ‘Anti National’ content on social media platforms.

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Indian government are searching for indivisuals to act as online spy for them.

The issue shouldn’t be limited to the fact that What exactly is anti-national? How, precisely will social media opinions be monitored? But also to the fact that is this a façade to curb dissent of all forms?

Role of Intermediaries - Intermediary Guidelines

The new draft mandates that intermediary platforms should snitch on their users. Any inflammatory content should be flagged and traced back to its original poster within 36 hours of posting it. Not only does this make the encryption feature redundant, but it may also lead to falsification.

Further, Digital news media organisations can be directed by the government to remove any content under Section 69A of the Information Technology Act, which it finds objectionable from the perspective of law and order, country’s sovereignty, integrity, or cooperative relations with bordering countries. The definition of what sort of content constitutes a violation of these points is at the government’s prerogative. The government decides what it deems in the purview of these limits and what it doesn’t—again, leaving things open to interpretation yet, giving scope for exploitation.

Regulating OTT Over-the-top Platforms

The draft rules say that OTT platforms need to consider “India’s multi-racial and multi-religious context” when emphasising content correlating to any racial or religious group. However, in an infamous country for screaming wolf every time any fictional show has even had a slight mention of religion, this clause is prone to be used as a communal tool in the hand of vigilante groups.

Stand-alone digital media companies need to follow the code of journalistic principles laid down by the Press Council of India, currently complied with by print media, and the Cable and TV Regulation Act, which applies to television news.

The regulation of OTT platforms even attracted a three-level grievance redressal mechanism. The first level comprises the publishers/owners. In contrast, the second level would include the self-regulating bodies of publishers/owners headed by a retired judge of the Supreme Court, or High Courts, or a domain expert. The third is an overlooking mechanism, including an inter-departmental government panel.

Way Forward

Before being enacted as a law, any Bill should be put through public consultation to be in mandate with the Pre-Legislative Consultation Policy. The hasty manner in which this bill is being pushed to pass should be discarded, and proper channels of public discourse should be adopted before enactment. The suggestions received from the actual stakeholders should be looked into. A committee should be devised to either take up the citizens’ concerns with the draft or explain what sort of goal these provisions seek to achieve.

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