Regulations on social media evoke divergent views from legal experts

The government's new regulations for social media platforms and OTT players Thursday evoked divergent responses from legal experts with one section saying these would be valid till they contain reasonable restrictions while some opposed on grounds of infringement of privacy and free speech under the Constitution.

The Centre Thursday announced sweeping regulations for social media firms like Facebook and Twitter as well as OTT players such as Netflix, requiring them to remove any content flagged by authorities within 36 hours and setting up a complaint redressal mechanism with an officer being based in the country.

The regulations also make it mandatory for platforms such as Twitter and WhatsApp to identify the originator of a message that authorities consider to be anti-national and against security and sovereignty of the country.

While senior advocate Ajit Sinha said if the restrictions were reasonable, then the rules can be imposed, senior advocate Menaka Guruswamy said it will impact the privacy rights and the freedom of press.

Sinha, however, added that the prima facie view is that these social media platforms will be governed by the Indian law and the government will have the power to regulate.

"The social media rules will be valid till the time they contain reasonable restrictions under Article 19 (freedom of speech and expression). If the restrictions are reasonable then certainly the rules can be imposed".

"The prima facie view is that now these social media platforms will be governed by the Indian law...and the government will have the power to regulate... Unreasonable restrictions, if any, in the rules can be the only factor which can be used to challenge them in the court of law," Sinha said.

Guruswamy raised the question as to how bureaucrats can decide what the contents of OTT platforms be and the courts are there to hear such concerns.

She said end-to-end encryption provided by the platforms to protect privacy of the users would end by forcing to reveal the identity of the originator of the content.

"The new Information Technology Rules, 2021, seek to regulate social media intermediaries like WhatsApp and Signal. By forcing the identity of the originator to be disclosed, this will burden end to end encryption facility that is provided by these platforms. This will impact privacy, speech, express and conscience rights under the Constitution," Guruswamy said.

She further said the rules also forced the OTT platforms like Netflix and Amazon Prime to be subjected to oversight by the government, which will impact artistic creativity and expression.

"Who are bureaucrats to decide what the content should be? The courts are already there at present to hear concerns. Finally, the rules by seeking to regulate digital media will hurt freedom of press.

"How can you regulate the press by the IT Act? This has not happened before. What happens to freedom of press, speech expression," she added.

Welcoming the regulations, advocate Mrinal Bharti said freedom of speech was of paramount importance but it also entailed responsibility and accountability.

"It's a welcome step to regulate this platform. Freedom of speech is of paramount importance but it also entails responsibility and accountability. These rules place importance on self governance and ensure a grievance redressal mechanism.

"Since, misinformation and misuse needs to be controlled, these rules will pave the way for it. However, it will be interesting to watch how this unfolds," Bharti said.

Senior advocate Dushyant Dave and lawyer Vrinda Grover did not offer their views, saying they would react after going through the guidelines.