With almost 500 million Internet users, and a history of mis- and disinformation spreading on social media and messaging apps and occasionally resulting in violence, content moderation has been a pressing issue in India for quite some time. Regulation of content is covered by different legislations under the Indian Penal Code, the Information Technology Act (ITA), and Criminal Procedure Code, and shortly under the Framework and Guideline for use of Social Media.
Terrorist use of the internet in India is mostly regulated through the criminalisation of cybercrime, covered by Section 66F of the Information Technology Act, which regulates cybercrimes and electronic commerce.
India’s regulatory framework:
Key takeaways for tech companies
ITA Section 66A vs. Indian Supreme Court
Whilst the ITA does not explicitly mention online terrorist content, Section 66A of the ITA penalised – until 2015 – the use of communication devices to share information that is “grossly offensive or has menacing character”, as well as false information purposely shared to cause (amongst other things) hatred, ill will, criminal intimidation, and enmity. The provision was struck down by the Supreme Court of India in Shreya Singhal v. Union of India (2012). The Court held that the prohibition against the dissemination of false information did not fall within any reasonable exceptions to the exercise of the right to freedom of expression. Instead, it held that online providers would only be obligated to take down content upon receiving an order from a court or government authority. The court further clarified that the “public order” free speech exception under Article 19(2) of the Constitution would not apply to cases of “advocacy” but only to “incitement”, which has a proximate relation to public disorder.
In effect, this decision by the Court exempted tech platforms from having to pro-actively monitor content and exempted them from liability for user-generated content. However, the Court also “made it clear that only authorised government agencies and the judiciary could legitimately request internet platforms to take down content” that is deemed illegal by the Indian authorities.
A content regulation system based on removal and blocking requests
Without a regulatory framework dedicated to online content and speech, the Indian government has relied on content takedown and blocking requests to moderate online content. Under Section 69A of the ITA, Indian authorities can request that tech platforms block access to content in the “interest of sovereignty and integrity of India or public order or for preventing incitement to the commission of any cognizable offence relating to the above”. Moreover, tech platforms’ exemption from liability for user-generated content is linked to removal or blocking of access to content when notified by the Indian authorities, as per Section 79A. Those failing to comply with a blocking request can face up to seven years of imprisonment and a fine.
This reliance on removal requests has made India the leading country in government content removal requests sent to major tech platforms, in particular Facebook, according to a 2019 report by Comparitech. Most of the requests made by the Indian authorities were related to “hate speech, anti-religion content constituting incitement to violence, extremism, and anti-state content.” The Indian government has also been relying on internet shutdown measures, with 134 reported shutdowns in 2018. These shutdowns range from long-term shutdowns in places like Kashmir to more sporadic, short-term shutdowns in response to protests and unrest in the country.
“Traceability” of content
In response to the misuse of social media platforms and messaging apps, and in particular to counter the spread of mis- and disinformation, the Ministry of Electronics and Information Technology introduced in February 2020 a Framework and Guidelines for of Social Media Regulations. This framework was first introduced by the Ministry of Electronics and Information Technology in January 2018, and was set to be rolled out in 2020. This framework would allow for facilitated sharing of information between tech companies and law enforcement agencies, and require platforms to help authorities track down the origin of any post within 72 hours. Companies would also have to “keep records [of tracked online content] on file for 180 days at minimum to aid with potential government investigations”, as well as to maintain a physical presence in the country and establish a “grievance officer” to liaise with the government.
These rules would apply to all social media and messaging apps with more than 5 million users in India, whilst other tech companies, such as operating systems or online encyclopedias and repositories, are all exempt. Encrypted messaging apps would also have to comply with the treatability requirement, a task complicated to complete without breaking the end-to-end encryption. Tech platforms and civil rights advocates have criticized the new rules for being “an invitation to abuse and censorship”, as well as a burdensome requirement for companies to comply with. Others, such as the Internet and Mobile Association of India – including Facebook and Alphabet – have criticized the rules for being detrimental to the right of privacy.
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