The Online Regulation Series | India

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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:

• The Information Technology Act (ITA), passed in June 2000 and amended in 2005, is the framework for regulating cybercrime, including the offence of cyberterrorism, in the country.
• Shreya Singhal v. Union of India (2012), a landmark decision by the Indian Supreme court in 2015 absolving tech companies from the obligation of actively monitoring their platforms for illegal content.
• Framework and Guidelines for Social Media Regulations, to be introduced in 2020, regulating the traceability of content shared on social media and messaging apps.

Key takeaways for tech companies

• Tech platforms operating in India are exempted from liability for user-generated content, as long as they comply with government takedown guidelines regarding the removal of certain content, as per Section 79A of the ITA.
• Under the ITA, Section 69A, tech platforms can be asked to remove or block access to certain content deemed to be against the sovereignty, integrity and public order of India.
• Non-compliance can be penalised by jail terms and fines.
• Under the 2020 Guidelines for of Social Media, social media and messenger apps of over 5 million users will have to
• Assist authorities tracking down the origin of a post within 72 hours of notice.
• Keep data record of tracked content for 180 days.

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.

Resources:

Awashti Prashati (2020), “Social media users to be tracked by government under new guidelines: Report”, The Hindu Business Line

BBC News (2018), “India lynchings: WhatsApp sets new rules after mob killings”

Bischoff Paul (2019), “Which government censors the tech giants the most?”, Comparitech,

Bristows LLP (2020), “Social media; to regulate or not to regulate?”, Lexology, 19 June 2020

Cloudflare, GitHub and Mozilla’s open letter to the Indian Government, 07 January 2020 

Library of Congress, “Government Responses to Disinformation on Social Media Platforms: India”

Mandavia Megha (2019), “India sent most takedown requests to social media companies”, Economici Times India

Nazmi Shadab (2019), “Why India shuts down the internet more than any other democracy”, BBC News

Newton Casey (2020), “India’s proposed internet regulations could threaten privacy everywhere”, The Verge

PYMNTS.com (2020), “India's New Social Media Rules Would Strip Anonymity — When Asked — From Accounts”

Rai Saritha (2020), “400 million social media users are set to lose their anonymity in India”, Bloomberg

Taneja Kabir and Shah Kriti M. (2019), “Kashmir blackout: Counterterrorism and an increasingly challenging role of the internet”, Observer Research Foundation

Samuels Elyse (2020), “How misinformation on WhatsApp led to a mob killing in India”, The Washington Post

Sidharthan R., “The Information Technology Act and Media Law”, Legal Service India

Sidharthan; Awasthi Prashasti (2020), “Social media users to be tracked by government under new guidelines”, The Hindu Business Line

Software Freedom Law Center (2019), “Any regulation of online speech in India must safeguard the rights to free speech and privacy”, Scroll.in

United Nations Office on Drugs and Crime (2012), Use of the Internet for Terrorist Purposes

Wagner Kurt (2019), “WhatsApp is at risk in India. So are free speech and encryption.”, Vox, 19 February 2019