By: Advocate Hanan Moumin
The gradual conversion of myriad human experiences into virtual world has indeed paved way for the dawn of digital age rapidly transforming almost every aspects of human existence. The strides of modern man into future are often elongated by scientific and technological reach and the contribution of modern information technology in extending this grasp of humans draws no parallels. In addition to revolutionizing the methods and means of personal interaction, information technology has also given birth to “social media” which unlike conventional media provides a multi-dimensional interactive platform to both the receiver and originator of information without assigning any specific role to its users. Based on numerous websites and web portals dotting the horizon of internet, social media can be accessed at any point of time and it is this flexibility which has fetched social media far more users than conventional media could ever achieve.
The mercurial growth of this neo-media was largely left unchecked and as India entered into a digital revolution and garnered more and more users of social media, the evils and dark-sides of having a non-regulated medium of information began to emerge. In an ever changing technological landscape, it is often difficult to devise rules and laws to fit in every situation and simultaneously do complete justice with the utility of the technology it seeks to regulate.
The IT Rules 2021, notified by the Ministry of Electronics & Information Technology (MEITY), caused a furor among the “netizens” and the peculiar reasons attributed to such furor is exactly why there is a pressing need for the implementation of rules to regulate the social media. The IT Rules 2021, were notified as early as February 2021 and a deadline of May 2021 was set up by the authorities whereby major social media websites were given time to adhere and comply to the requirements of these new rules. As the deadline approached, speculations began to galore and in absence of any confirmation from major social media websites pertaining to the compliance of rules, the fake news of these portals getting banned and inaccessible to the netizen appeared and came as rude shock. Though, said rules never consisted any such provision which mentioned the banning of any website in case of non-compliance but in digital world “fact-checking” and “verification” is a luxury affordable to a few. The fire of fake news pertaining to banning of social media websites was yet to die out completely and in between a “forwarded message” began to do rounds on “Whatsapp”. It consisted of numerous measures taken by the current dispensation to implement an Orwellian surveillance system. Unsurprisingly, the “viral message” also turned out to be fake only intended to create mass hysteria in the background of the implementation of new rules.
Of late, the instances of fake-news and fake messages have gone up by many notches and post pandemic induced lockdown the frequency of instances has increased tremendously. The misleading and false information is constantly being showered upon the masses which has a potential to incite fear and anger among masses leading to uncanny ruptures in social system and ensuing economic catastrophes.
It is common knowledge that all the content available on the social media websites is user generated and even though the websites have no control over the content generated upon its platform, the legal requirement of exercising due diligence and following the guidelines of government has always been there. It is the reason that content relating to pornography, violence and digital piracy cannot be posted or accessed on these websites. Prior to the implementation of new IT Rules 2021, the 2011 Rules governed the conduct of social media websites and required these websites to disable access or remove objectionable content such as fake news or unlawful information upon receiving actual knowledge of the such content. The term “actual knowledge” was interpreted by the Apex Court of country in the landmark judgment of Shreya Singal and was held to mean “knowledge of court order directing it (website) to disable access or remove such information” thereby introducing an element of judicial scrutiny and preventing arbitrary executive action. The new rules have retained and embodied the principle laid down in Shreya Singal case with regards to the “actual knowledge”. In addition, the new rules have also laid down mechanisms for establishing of grievance redressal in case any person has any objection related to the content hosted by a particular social media website on its platform.
A debatable issue is the contravention of such provisions with the fundamental right of freedom of speech and expression as enshrined in the constitution. However, the position of law is clear that the freedoms enshrined under Article 19 are not absolute and are subject to reasonable restriction such as public order and safety. Another issue attributed to the new Rules of 2021, is the tracking of “originator” of a message or content posted on social media whereby all such websites and applications are under obligation to divulge the information pertaining to the originator of any such content which is unlawful or misleading as per the set norms. An order directing a website to identify the first originator can only be passed for prevention, detecting, investigating or prosecuting any offence relating to the sovereignty or integrity of India, its security and relations with other countries, public order and in relation to information depicting rape or sexually explicit material or child sexual abuse material.
As the digital realm expands into uncharted territories, the need to introduce and implement updated legislation and regulations pertaining to the technology will be imminent and global. Even in a country like China, where the cyber space is restricted only to local websites and no international social media website or application can be accessed, newer and stricter laws are being implemented and many major internet companies like AliBaba and ByteDance have been under the scrutiny of Cyber Space Administration of China. Likewise more needs to be done in India which has long neglected the need of Data Protection Law, which can essentially give effect to the fundamental right of privacy and settle the permissible/impermissible debate once and for all.
