Analyzing India's New Intermediary Guidelines

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Guidelines) enacted last year by the Indian Government, replaced the Intermediary Guidelines, 2011 (Erstwhile IG), which had proven inadequate to address individuals' increasing interaction with evolving types of online content. The Guidelines impose more strenuous obligations on intermediaries than the Erstwhile IG, with the paternalistic objective of protecting citizens from misinformation and online harms.

The scope of the Guidelines is extensive. They not only regulate online intermediaries, but also establish a code of ethics to regulate digital media, comprising of news publishers and online content providers. They create a categorization of intermediaries, 'significant social media intermediaries (SSMI)’, which have at least 5 million registered users, and subject them to additional compliances.

I argue that these Guidelines have inadvertently created a totalitarian state, which clamps down on citizens’ free speech, in the garb of protecting their religious and reputational rights from the excesses of private companies, and suggest an alternative regulatory framework.

Analysis

I have identified the following concerns with the Guidelines:

Undemocratic:

Once rules are drafted, they are required to be subject to public consultation before they are enacted. However, majority of the Guidelines were brought into effect without any engagement with the public.

Undermining Privacy and Encouraging Self-Censorship:

SSMIs that provide messaging services, such as Meta through WhatsApp? , must enable the identification of the first originator of information, and even disclose the content of such communication, if required by an order passed by a court or competent authority on vague grounds such as 'sovereignty and integrity, security, public order'. Though addressing intermediary-related harms is a legitimate aim, enabling the intermediary to trace conversations and report them to the Government would significantly impact user anonymity, trust, and privacy, and have a chilling effect on free speech. It would also discourage intermediaries from instituting end-to-end encryption policies which protect users, and would legitimize their pervasive surveillance in accordance with the Government's requests.

Furthermore, under the Guidelines, intermediaries are obligated to take down content within 36 hours of receiving an order from the court or an appropriate government agency that the material allegedly violates 'decency or morality', 'public order', etc. Intermediaries are further obligated to provide information and assistance to Government agencies within 72 hours.

The Government has imposed such short timelines to disallow intermediaries from adequately assessing the sufficiency of their notice, and to deprive users from a reasonable opportunity to be heard, and to defend their freedom of speech. Furthermore, the ability of Government authorities to demand content takedowns with no oversight allows them to seek the removal of speech for political or other undemocratic reasons, and we are aware of the Indian Government's legacy in this respect. Compelled to choose between not taking down content to protect users' rights, and taking it down to shield themselves from liability, intermediaries will inevitably over-comply.

Over-Regulation:

The Guidelines regulate intermediaries via a three-tiered grievance redressal mechanism which is largely executive-driven. At the first stage, a publisher-appointed person is the nodal officer; the self-regulatory bodies at the second tier are required to register with the Government. At the third stage, membership of the oversight mechanism is to be shared among different Government ministries. This is coupled with a code of ethics which guides intermediaries on what content they can publish.

This framework allows misuse by the Government, when analyzed in the context of plummeting press and artistic freedom in India. By conferring quasi-judicial powers on the executive, and appointing Government officials to assess the lawfulness of content, this system can be exploited to curb opposition, while making the Government 'the judge, the jury, and the executioner'.

Moving Forward

In the context of rising majoritarianism and over-regulation of speech, evinced by India's tumble on the World Press Freedom Index, the enactment of these Guidelines are particularly concerning.

Several petitions have been filed by various institutions and individuals, challenging the validity of the Guidelines, as people are worried about their dangerous impact on free speech and privacy of citizens. If courts do not strike them down, I am hopeful that enough public pushback will compel the Government to repeal them, and replace them with guidelines backed by public consultation.

Safe harbor provisions are inadequate, and liability needs to be imposed on intermediaries for protecting their users, while also guaranteeing their free speech. However, limited immunity should be guaranteed to start-ups. Therefore, though I acknowledge that intermediaries, especially big corporates, need to be held accountable, I believe that the Guidelines have over-regulated the space. The Government should not determine the specific content to be restricted, and only provide a minimum set of prescriptive guidelines to intermediaries, which have passed the test of public consultation, and which intermediaries must include in their community guidelines. To detect unlawful content, intermediaries could employ bias-free algorithms at the first stage, and subsequently employ human oversight. Ambiguous cases could be subject to a diverse committee of ombudspersons, a refined version of Meta’s oversight board, which would guide take-down determinations.

Conclusion

Through these Guidelines, the Government has portrayed corporates as citizens' antagonist, and itself as a paternalistic savior, which knows how to represent citizens’ interests best. However, the power of both these entities needs to be adequately curtailed, by citizen-centric legislations.

The Guidelines have placed India alongside many other Asian countries that have similar laws regulating digital entities, which are directed toward nationalizing online content, including online news. The Government is in fact carrying out censorship by proxy, forcibly delegating its unethical acts of censorship to intermediaries. We have witnessed this in the case of Twitter, which though initially resisted, had to acceed to the Indian Government's order to block access to accounts of individuals who lawfully dissented against the Government’s policies.

If the Guidelines continue unamended, they would not only curb free speech, but also have a self-censoring effect, where citizens would not engage in conversations which could be even remotely incriminating, or anti-establishment. Consequentially, the foundation of India’s democracy would crumble.