Big tech firms should adhere to law of the land

Twitter has come in the eye of the storm in the past few days. It is the only tech giant based in India yet to implement the new information technology rules coming into effect from May 26. The situation has become more complex with the micro-blogging platform involved in a controversy over tweets about a violent incident that was initially described as being of a communal nature.

The immediate crisis, however, highlights the continuing tussle between the government and the tech giant that has yet to comply with the new rules directing establishment of a nodal officer, a chief compliance officer and a resident complaints officer. It is not just Twitter, however, as irritants continue to mount between the government and the digital platforms.

These tensions with Big Tech over content issues are being faced not only in India but around the world as well. In Australia, for instance, a new law has been passed to ensure that both Google and Facebook pay for news content by entering into negotiations with media organizations in that country.

The European Union also called on the US earlier this year to help draw up a "common rule book" to rein in the power of Big Tech companies like Facebook and Twitter to combat the spread of fake news. The European Commission President contended this was "eating away at western democracies". It also cited the removal of former US President Donald Trump from Facebook and Twitter as examples of the immense power of these tech giants to regulate speech by way of company law.

It is in this context that steps being taken in India are being viewed globally as yet another template for taking on Big Tech. It is widely accepted that algorithms of these companies have become the drivers for controlling content and creating false narratives. The main aspects of the new IT rules are the directive to create an institutional grievance mechanism within this country rather than in the US based headquarters. The second issue relates to the determination of the "first originator" message on Whatsapp in a bid to control the viral spread of defamatory, communal or pornographic content.

As for the grievance mechanism, the objections by tech giants like Twitter are that the persons appointed to these posts can become criminally liable for content on the platform. This is certainly an issue of concern that needs to be discussed with the government as the setting up of a grievance system should not become a route to take punitive action against individual employees rather than the tech conglomerates.

At the same time, it is difficult to refute the arguments made by IT and Law Minister Ravi Shankar Prasad that women facing harassment due to pornographic content being posted online cannot be asked to take their complaints as far away as the US The grievance system has to be set up within this country for it to be meaningful.

The law, however, protects digital platforms from criminal liability for content posted by others. There is thus the concept of "safe harbour" for such platforms under section 79 of the IT Act. Social media intermediaries which do not comply with the rules, on the other hand, like Twitter will lose this safe harbour protection. Some legal experts have argued that it will continue to have such protection under this section. But this issue will need to be adjudicated by the courts who have, in one case, already directed that the tech giants must comply with the new rules.

On the other aspect of locating the origin of messages, the focus is largely on Whatsapp, the most widely used digital platform in the country. The argument against providing the first originator is that it would violate the system of end-to-end encryption of messages. The question of data privacy thus becomes relevant.

Yet there are larger issues such as the incitement to violence that has occurred time and time again due to fake Whatsapp messages. The tragic instance of persons having been lynched due to viral messages about child lifters is a case in point. There have also been innumerable cases of pictures and videos with communal content or morphed photos that have led to violent incidents and riots. In such cases, the digital platforms cannot hide behind declarations of privacy being more important than lives of innocent people.

The scale of the issue is enormous as those using social media in this country are larger than most other countries. India currently has 53 crore WhatsApp users, 44.8 crore YouTube users, 41 crore Facebook subscribers, 21 crore Instagram users and the least number of 1.75 crore are on the Twitter platform. The new rules apply to social intermediary companies that have over 50 lakh users and all these companies thus come within their ambit.

The issue of double standards by the tech giants in terms of responding to content issues is also relevant in this context. For instance, the police action during violence in the US on Capitol Hill after the elections was cited as acceptable on social media. But there was a different approach regarding the attack on Red Fort during the farmers demonstrations. Similarly, the term Singapore variant was deleted by Twitter within a day of that government's complaint, but the term Indian variant took a week to be deleted after the complaint.

There are surely some aspects of the new IT rules that need some tweaking. But by and large, these have been formulated keeping the needs of Indian consumers in mind. Just as Indian companies comply with US regulations while operating in that country, so too it is mandatory for the digital giants to comply with local laws here. Big Tech has a huge presence in this country and is set to grow even further. It is thus time for these digital giants to take a long term approach and work within the country's legal framework.