INTERMEDIARY DILEMMA FOR THE PEOPLE; OF THE PEOPLE; BY THE PEOPLE


India is a large country. It has a population of over 1.3 billion people because of which it is a big market for social media giants like Google, Whatsapp, Facebook, Twitter, Instagram, Telegram, Tiktok, etc as well as for telecom providers, OTT platforms, and short message service marketing companies.


India is a country of unity in diversity the people accept, adapt, and adjust easily so that makes it very easy for social media marketing companies to do business here. Indians unlike other western countries have an abundance of tolerance as stated in its PREAMBLE, which states that - “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”.


In India, there are two most popular cultures one is VIP culture (special treatment) and another one is cattle culture (HERD MENTALITY). People follow each other blindly. In a country like India, one can become a social media star overnight as millions of people are now active on social media, and news, video, or message travel across the country in a blink of an eye. So if things are sunny on one side they can be gloomy on the flip side so if you mess with people's sentiments you will face the heat also.


As we have seen in social media blue tick accounts, that a person who has a verified account, millions of followers can influence their audience very easily and even unknowingly spread fake news.


Law states that every person must first verify the source and then support or condemn the news because sharing may mean that you are endorsing it whereas your intention may not be the same. We can change it by cross-checking the facts and by understanding that it's just that one person's point of view.


As we all know that everything thing has its pros and con's, similarly social media has positive and negative sides as well. It has proved itself useful many times. Let's talk about the recent event in this time of pandemic when things slipped from the hands of authorities, the social media came forward as a great help people for providing a platform for people who needed help to people who can help. With the right set of minds and good intentions, people got connected with the correct people who were able to help them. Social media has connected us with everything and everyone as the help is just one tap away.


Nowadays people are aware of diligently using their social media account and due to pandemic use of wallets and digital currency are at peak but still, people's accounts get duped and fake or duplicate social accounts scams demanding money are on the rise.


The government's new IT intermediary rules are getting more stringent towards intermediary and on the contrary, people even fail to follow basic safety protocols. The government has proposed new IT rules 2021, Privacy Policy (PDP), and Intermediary Guidelines 2020 to curb and protect its people.


GOI has also proposed a draft DATA Centre policy to make India a digital hub of data centers which is part of India's Atmanirbhar/Make in India scheme. But Cybercrimes are on the rise either in the manner of data theft or online bank account transactions or spreading of fake messages/news but people still aren't taking proper precautions regarding cybersecurity as they don't give up their convenience for the sake of safety.


Hundreds of apps are downloaded without checking their origin and for the sake of ease of usage. User permissions are granted which provide these apps access to phone or PC. Moreover, People are still in the habit of having simple passwords which are easy to remember and do not change their passwords regularly. Most of the people are still using their first password which they had created while opening the social media account/ bank account.


The intermediary is the medium through which a user can avail all these services and through an intermediary, these services are enabled so that they can be used and accessed by the end-user. According to Information Technology Act, intermediaries are broadly defined under Section 2(w) as any person, who on behalf of another person receives/stores, or transmits that record or provides any service concerning that record and includes telecom service providers, network service providers, and internet services. So as far as the definition of intermediary is concerned it includes search engines to cyber cafés.

India is all set to become the world's biggest digital economy and the government of India is making all efforts in this direction. The role of the Intermediary as per new intermediary guidelines has come under strict surveillance and government intends to curb the abuse of safe harbor protection provided to intermediaries.


All big companies from Google to Facebook have now approached various courts for seeking relief under the umbrella of safe-harbor protection provide to the intermediaries.


Google has sought protection stating that is an aggregator and not a social media intermediary therefore no coercive action be taken against it similarly Whatsapp has sought protection from being held liable for not being able to provide traceability of the origin of messages as its algorithm is designed to keep the origin of message anonymous, Facebook has also denied moderation of content on its platform demanded by MEITY and Twitter- Indian Government faceoff escalated over new IT rules 2021 stating that new rules are a threat to freedom of expression and it will not compromise on its principles of transparency and protection of privacy of its users.


As we know that India is a unique country and this uniqueness is different from other countries. We cannot adopt the laws which are made for the western countries as our basic upbringing and living manner is unique. We Indians are very heartwarming and adaptive, Vis a Vis, very high regards to our ancestors and culture is deep-rooted in our society. Therefore we need to adapt to data laws as well as privacy laws in a manner unique to our basic nature to preserve our dignity and well-being.


Although we can take the idea from EU GDPR and US laws and improvise it according to the need of our country with reasonable changes. Many stalwarts have stated that new IT rules are a blow to the vibrant culture of discourse, deliberation, and dissent in India.


The experts have demanded few changes in the new IT rules:

  • Personal criminal liability on employees of an intermediary such as the chief compliance officer to be waived off.

  • Companies have asked for an extension of the deadline to comply; some even want time up to a year to comply fully.

  • Only a few central government agencies should be allowed to ask for content takedowns and requests for information.

  • Clarification on various aspects of content takedowns, user data requests; their scope and timeline, and the procedure for user notification.

  • Protection of privacy and security for users that may be compromised in tracing the “first originator of information”.

This debate regarding 'how the world navigates its citizen right to privacy' will continue much longer and as the matter is now sub judice before various high courts seeking protection under the safe harbor umbrella and demanding to quash of the new IT law related on many counts including traceability.


GOI is furious over any threat to India's sovereignty and on the other hand, a foreign company imposing its tech law and denying traceability as well issue of content moderation is a matter of deep concern. That the digital media ethic codes intermediary guideline information ruled 2021 raises serious concern in intermediary approach toward the right to privacy the much changes have been brought in the information technology after the Shreya Sengal Vs UOI passed by Hon’ble Supreme Court of India in 2015.


The new IT ruled as per GOI aims in empowering users to excise their right to freedom responsibly and to prevent the abuse of this platform for unlawful purposes. All said and done everything is done for the people, by the people.


-By NITIN SINGH BHATI

GENERAL COUNSEL AT RACKBANK

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