The new Information and Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 under Section 79 of the IT Act has created a flutter. The news media has paid extraordinary attention, space and time to it as it unfolded, and with good reason. Few people dispute the need for some kind of regulation of the digital media. But the debate is over whether it does what is needed. How empowering a tool are the new rules for the public, who are the ultimate users?
From the press statements of minister for information and broadcasting Prakash Java-dekar and minister for information technology Ravi Shankar Prasad, it seems that the new rules seek to rein in the online media and the social media platforms by intervening in their content, and that the overarching objective is to get the digital platforms to be envel-oped into “the law of the land”. (I draw a technical distinction between “online platform” from “digital platform” — the first is an unbundled series of news stories released across time, while the latter is a package, similar to a printed newspaper.)
Because the interpretations of sensitive laws of the land by government agencies — in regard to the freedom of expression versus sedition, for example — in recent years have been disputed, a certain amount of scepticism with regard to Rules 2021 should be expected. Experts have questioned whether the new rules even pass the test of constitutionality — in terms of rationale, purpose, proportionality, necessity, and possible impingement on people’s basic rights.
First, to tease out what is new in the rule. In its articulation, the rule seeks to empower the user’s voice, especially in case content is objectionable to them. The new rule changes the privacy protection norms that the social platforms seek to exercise by drawing a line between acceptable messaging and spreading objectionable messages. The mandating of age-appropriateness in the rule for the over-the-top (OTT) content certainly ensures that parents have the right to monitor which content is available to their child and which content could be abhorrent. International OTT channels do declare the customary caution about the nature of the content. The rule attaches online news to the conventional definition of news, making online-only news platforms adhere to the same Press Council of India and the Cable Act norms as the conventional media do. The rules mandate a self-regulatory mechanism, like the National Broadcasters’ Standards Association (NBSA). A three-tier redressal mechanism entails inter-ministerial oversight. Social media companies, or “intermediaries”, would need to disclose the originator of a “mischievous” message.
I would like to take a media literacy point of view here. In a social media world, the user is also a producer of messages. Media literacy has increasingly gained popularity in school and college curricula in several countries after the alarming rise and opiate-like popularity of fake news. Recently, the Walter Cronkite School of Journalism at the Arizona State University introduced a degree programme in media literacy that takes a train-the-trainer approach and teaches journalism students to further educate society. It empowers the user through an understanding of messages, modes and meanings. Among other functions, media literacy unlocks the user’s understanding of how to decode media messages — including what is omitted and unstated.
Fake news is a significant reason that media literacy has emerged strongly in the education curricula around the world. Facts and fiction are distinguishable quite simply — if you mix facts with fiction, the concoction can still be called fiction, but the other way around should not be acceptable. One would have expected the Rules 2021 to draw that distinction in an effort to stem fake news. In the long run, its mandate to identify — and punish, presumably — objectionable content may act as a threat and thereby a deterrent to fake news mongers. Handing itself the authority to know who the originator of an objectionable message is does empower the government to act against such individuals. But it misses the point on educating the user. The tiered approach of redressal would only empower users to the extent that social media platforms already allow — through complaints about content that one may find objectionable. There is no real way in which to prevent fake news or intimidation or national security threats because there is no scope for prior restraint in the current technology adoption.
The word “media” in the term “social media” is totally misleading — it is merely media in a technology sense of the term. Yet it is an empowering tool like none other in recent history. People tend to use the social media as a public square, mixing facts and fiction, public and private. Other users exposed to the public discourse have been consuming and re-producing it, essentially dismissing the need for credible information, or for doing any kind of fact check. The new rule does not take care of this problem. How does a user distinguish between the credible and non-credible platforms?
So, the proposed rule on the social media “intermediaries” seems both perfunctory and off the mark. Is it because the real intent is to rein them into a more government-controlled content environment in the name of the “law of the land”, which are being adhered to anyway? In an ideal world, strengthening the hands of the user and empowering the government should be the same thing. But is it possible for a government to use the former as a front for the latter? The decryption-on-demand mandate is a powerful indicator that this could be the result, providing access to the government to whether what people are saying — and perhaps thinking — can be punished if found to be politically inconvenient.
The exemplary and now routine arrests of seemingly ordinary individuals who are seen to be endangering the nation’s sovereignty have spooked a large number of citizens. If the government’s intent is to provide more rights to its people, it must help soothe the nerves of people who are now confused about what to say on the social media. If the government seeks to make genuine efforts through the Rules 2021, it must decontrol, not control, the information flow, but in parallel also launch a national drive to make the user more aware of the importance of real information, drawing a distinction between certified, credible platforms and opinionated individuals pretending to be the disseminators of information.