Rethink the regulation of online intermediaries
PremiumFree speech has its limits and social media platforms simply can’t go unregulated. But some of the new rules imposed by the government are overdone. Online liberty deserves more space
There has been tension in the air between social media companies and the government over what appears on our hand-held screens ever since New Delhi issued stiff new rules for digital intermediaries in February. It came to a head after the Centre’s compliance deadline of 25 May expired, with major platforms displaying a mix of resistance and reconciliation to regulation. On Wednesday, news broke of a plea filed in Delhi’s high court by the Facebook-owned WhatsApp, which wants a rule quashed that requires it to trace the originator of a message, if so asked by authorities, on the argument that this would force it to undo its encryption, flout the privacy of users and expose them to surveillance. A day earlier, Facebook had stated that it aimed to comply with Indian guidelines, though it had some issues to discuss. While the actions of this US-based megacorp hog the spotlight, especially in a global context of Big Tech and nation-states going eyeball-to-eyeball in a test of will and power, India’s new rule-book merits wider discussion for the simple reason that it affects everyone online, not just businesses that run chat forums.
The Constitution guarantees our freedom of speech, even if we do not have a specific privacy law, but it also makes space for restraints in the interest of peace and harmony, both of which social media posts have shown an ability to disrupt in ugly ways. Hence, no one can dispute India’s need to regulate online expression in a way that draws it into consonance with a legal framework designed to outlaw stuff that is incendiary or patently harmful in other ways. Also, security threats do require state agencies to occasionally peer into private spaces, a practice that can well be safeguarded by judicial oversight. Some of the Centre’s new provisions for intermediaries, however, go rather too far. Social media apps that are deemed ‘significant’—with 5 million users or more—must appoint not just a grievance officer resident in the country, but also a chief compliance officer and a ‘nodal’ executive for round-the-clock coordination with Indian agencies of law enforcement. Not only is this too onerous, the criteria of application are so loosely defined that sundry internet services could easily get caught in its purview by virtue of their chat boards and inactive users, which could deter global e-businesses from operating in India. Disappointingly, the Centre is yet to clarify exactly how the 24/7 police interface will work, but the power wielded over online platforms by such a mechanism could keep them in a perpetual state of fear, which in turn could distort any filtration of what gets posted. In any democracy, nothing should get muzzled by an app moderator’s view of a government’s disposition. Yet, this worry looms large.
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Failure to comply with India’s new guidelines could cost digital intermediaries their legal shield of ‘safe harbour’, under which they cannot be hauled up for what users post online. A loss of this indemnity would be a hard blow. Even after they adopt the rule-book, charges of guideline violations could put their compliance chiefs at personal risk of criminal prosecution. Such an extension of liability, again, smacks of regulatory overkill. At a time when allegations of sedition are hurled around at the swipe of a thumb, we need lighter tools of mediation. We can’t have an online free-for-all in a country where words can incite violence. Our vigilance, however, must extend to every civil liberty.
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