In February 2020, The central government issued fresh guidelines for social media and OTT platforms. The government said that these guidelines were being introduced to “establish a soft touch progressive institutional mechanism with a level playing field featuring a Code of Ethics and a three-tier grievance redressal framework for news publishers and OTT platforms on the digital media”.
The guidelines that were issued by the central government had several provisions and code of ethics for the functioning of OTT platforms, Digital News websites and Social Media behemoths like Twitter, Facebook etc.
For the purpose of this article, we will focus only on the social media platforms, the guidelines that were meant to govern them, how they had resisted the implementation of these regulations and how they continue to stealthily skirt the guidelines issued.
What were the IT guidelines that applied to social media platforms
One of the most significant provisions of these guidelines is that if the social media platforms don’t comply with the provisions prescribed in the guidelines, this will attract penal provisions as per the Information Technology Act. The new guidelines say that the social media intermediaries must follow the due diligence mentioned in it, and if any intermediary does not follow the due diligence, the safe harbour provisions will not apply to them.
The section 79 of the Information Technology Act defines this safe harbour, which basically makes them not liable for any content posted by users on their platforms. It says that an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by them, provided they themselves didn’t initiate such communication, and observes due diligence under the IT act.
Now, this due diligence to be observed by the social media companies have been defined in the new guidelines. It includes various measures they have to perform, like identifying the first originator of any information that appears on social media, not allowing content that is defamatory, obscene, pornographic, paedophilic, inciting violence, against national integrity, misleading, false etc. The platforms also have to remove any such content within 36 hours of receiving a court order or a government direction to remove such content.
According to the guidelines, if the social media sites allow such objectionable content to be hosted on their platforms, and don’t remove them even after receiving such orders from courts or the government, it will mean that they are not observing due diligence. As a consequence, they will lose the safe harbour in the IT Act that isolates them from content posted on their platforms.
This means, if the social media companies do not comply with the guidelines, they will be held responsible for any content which is not allowed as per the guidelines. And, the officials of the social media companies will be liable to be prosecuted for such content. This implies that the social media officials will also be punished according to the nature of the offence, which is defined in the IT Act for various kinds of offences. The punishment defined in the act includes imprisonment for three years for most offences, but life imprisonment for some like cyber terrorism, and also includes fines of various amounts.
When the IT guidelines were issued, one of the most important compliance requirements imposed on social media companies was the grievance redressal mechanism that they had to put in place.
Following are the guidelines related to the appointment of grievance officer and the redressal mechanism they were required to put in place:
- Social media intermediaries shall register the grievance within 24 hours and dispose of the complaint within 15 days.
- The Intermediaries will have to publish a compliance report once a month where they detail the complaints they received and how they redressed the complaint.
- The resident grievance officer shall perform all functions under the grievance redressal mechanism.
- All grievance officers should have a physical address and that address should be published on the website and the mobile app.
- The person appointed as the chief compliance officer shall be a resident of India.
- The nodal contact person will be responsible for 24×7 coordination with Indian law enforcement agencies.
While one of the most important provisions in the IT guidelines was the denial of safety net if the rules are not adhered to, in the realm of compliance, social media behemoths were supposed to appoint a grievance redressal officer who would cater to complaints raised in real time and most importantly, it is clear that the grievance officer had to be a real individual with a real address in India.
How social media companies tried to work around the guidelines issued
After the IT guidelines were issued by the central government, Twitter and Facebook attempted to sidestep the guidelines as much as they could. Months after the guidelines were issued, Twitter had failed to comply.
Twitter Inc. was in the middle of a tussle with the Indian government over the new IT rules and had failed to comply with the compliance requirements.
As Twitter did not comply with the rules, the Indian government sent a barrage of notices to the tech giant to follow the Indian laws. As usual, Twitter asked for more time to follow the Indian laws. In addition to the non-compliance, the Uttar Pradesh Government had initiated action against Twitter India for failing to take down tweets that spread misinformation about a crime in the state. An FIR had been lodged against the social media platform in connection with the Loni incident after Twitter failed to flag the fake news put out by alleged fact-checkers. At that time, when the ‘interim grievance officer’ was summoned for questioning, Dharmendra Chatur had promptly quit. Twitter and Chatur had both declined to comment and, in fact, Chatur had also deleted his social media accounts.
This had left Twitter without a grievance officer at the time.
Post that, in July 2021, the Court had come down heavily against Twitter for failing to comply with the guidelines and lying in court. When the court was informed that the social media giant has no full-time resident grievance officer in accordance with the new IT Rule as of date, the Delhi HC rebuked the microblogging platform for its inability to appoint a grievance officer from June 21, when the existing officer was removed, until July 6. “After 21 June, till July 6, the least you could have done was appoint another person. How long does your process take? If Twitter thinks it can take as long it wants in our country, I will not allow that”, said Justice Palli. The court had also said that Twitter needs to come up with a reasonable response or “they would be in trouble”.
It was only on the 6th of August that Twitter had then managed to appoint a nodal officer in compliance with the IT guidelines.
Facebook had also tried to avoid complying with the guidelines. At that time, Facebook had said that they “aim to comply with the guidelines” but they need “more engagement with the government”. A Facebook spokesperson had informed, “We aim to comply with the provisions of the IT [Information Technology] rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies.”
Eventually, they had complied with the guidelines by, on paper, appointing a grievance officer. However, while they claimed to comply, we will now analyse how they are essentially hoodwinking the government.
OpIndia’s tryst with Facebook “grievance redressal mechanism” and how the tech giant is hoodwinking the government
OpIndia has long been involved in a battle with Facebook with several of our posts being taken down without adequate reason. For example, it was only recently that OpIndia Hindi published a report on the Direct Action Day and how Hindus were massacred in the thousands. The headline was one that indicated the historicity of the incident accurately. This was right after Prime Minister Modi had announced that India would celebrate Partition Remembrance Day.
In the choice between the truth and feelings, Facebook chose feelings. This post was taken down and our Facebook reach was restricted for weeks.
We proceeded to find the email address of the Grievance Officer, since the Guidelines mention that the officer needs to be an Indian citizen with a physical office address, implying that there has to be human intervention in resolving grievances.
We sent an email to the email address mentioned – [email protected]. Interestingly, when we sent a detailed email about our grievance, we again got a completely automated response.
When we clicked on the link given by the “automated response” to our detailed email to the grievance officer, we were taken to a form that we filled out.
Thereafter, we were directed to the in-app appeal that is supposed to direct to the grievance officer. Interestingly, the in-app appeal to the Grievance Officer did not have the option that we needed. There was no option to contest that the pulling down of a post was unfair and that reporting history could not be termed “hate speech” by any stretch of the imagination.
We still selected the last option and submitted our appeal to the company.
In response to this, we yet again got an automated response with the links of the community guidelines.
It is interesting to note that Facebook, by Indian law, is required to have a Grievance Officer that resolves the complaints raised. Facebook, however, while has appointed an officer on paper, in practice, it is evident that they are skirting the process of the law. There is no human intervention as far as resolving grievances are concerned and when users raise a complaint, they are encountered with an automated response.
The Instagram process – same as Facebook
As is known, Instagram has been taken over by Facebook. When one looks at Instagram and their page where they detail how the Grievance officer is to be contacted, they have added the same email address as Facebook.
The email address used by Instagram was “[email protected] – the same email that we had used to raise our grievance with Facebook, to which, we had got automated responses.
Several individuals from Instagram have attested to the fact that they get automated responses as well when they email their grievances to Instagram, the same as we did when we emailed the Facebook grievance officer.
Twitter grievances – the same story
A few months ago, journalist and activist Deepika Bhardwaj’s account was suspended without providing any reason it.
Just learnt that Twitter account of journalist-activist @DeepikaBhardwaj has been suspended. She tells me Twitter hasn’t sent her any email about it all. Looks like there has been a mistake? Do look into it @TwitterIndia, @TwitterSupport #BringBackDeepikaBhardwaj pic.twitter.com/Zz5WXXq7ig
— Swati Goel Sharma (@swati_gs) November 22, 2021
OpIndia spoke to Deepika. She told us that her first appeal went unanswered by Twitter. She then sent a second appeal which was also unanswered. It was after 4 days that her account was reinstated after she had raised another complaint.
However, she also said that she got no response from the Twitter grievance officer.
Deepika is not the only one saying this.
Others have claimed that Twitter grievance officer, like Facebook, only sends automated responses without any human intervention.
This is interesting.
— Suresh Nakhua ( सुरेश नाखुआ )🇮🇳 (@SureshNakhua) July 11, 2021
Even after appointment of Resident Grievance Officer by @Twitter for @TwitterIndia, the automated reply is coming from @TwitterSupport US and griveance cell of Twitter India.
Just for your info, @AshwiniVaishnaw ji pic.twitter.com/YuH7VS5FBG
In September 2021, a popular political satire handle, Eminent Intellectual, was suspended from Twitter.
In an audio clip posted by the account ‘Eminent Intellectual (total_woke_), the satirist could be heard as saying, “Namaste everyone, this is Princess Woke Liberal. If you are listening to this, I’m already dead on Twitter. Sadly I got suspended, no email, no warning, just suspended. I have appealed it, but we all know that’s the same as appealing to Taliban for casual Friday. Not happening! What’s interesting is that I knew this was coming two days ago.”
She emphasised, “I made a tweet about Rana Ayyub’s promotion by Elle magazine over many years, and exposing that her brother Arif Ayyub is the publisher of the magazine. Interestingly, the tweet didn’t get published. Yes, you heard that right. Only I could see it. After an hour of figuring out what was happening, I deleted it”.
“As I am aware the Totalwoke account had also got suspended (in the past) after Rana Ayyub had targeted it. I knew I had committed Twitter blasphemy and my account deserved baas ek hi saza (only one punishment)… You know what that is! Anyway, I and Totalwoke are looking at ways to keep in touch with our friends here. You will hear from me after a few days and I’m sure we will get your support as always. Till then, follow total.woke on Instagram and stay safe. Jai Shri Ram,” ‘Princess Woke Liberal’ concluded.
Speaking to OpIndia, Eminent Intellectual said that repeated emails to the grievance officer had no result and that nobody responded to emails to the email address mentioned by Twitter.
Some other cases
Neha Shree is an actress working in Bhojpuri films. She has also worked in Rajasthani cinema and many TV serials. In November 2021, she had filed a petition in the Delhi High Court. In this, the Delhi government and social media company Facebook were made parties. The court had been requested to give directions to restore her Facebook page and give her access to the page. Neha has claimed in the petition that her Facebook page is followed by more than 4 million users and was hacked.
The hacker was reportedly posting lewd messaged and pictures from her account.
Neha Shree had said that she also complained to the Cyber Cell of Delhi Police. But they also did not take any action. The petition said, “Serious damage to his image has been caused by his Facebook page and objectionable post”. An FIR was also filed but no action was taken.
Interestingly, Neha in her petition said that after no action was taken on her complaint, she went to the Facebook office address in Delhi mentioned on their page, however, there was nobody there and no office was found per se. The guard told her to drop her complaint in the dropbox. Thereafter, she got a response saying that action will be taken in 30 days, however, nobody from Facebook acted on it.
YouTube as well has been accused of bias. “Sab Loktantra”, the YouTube channel was founded by Rachit Kaushik. He had posted a video reviewing Farhan Akhtar’s “Toofan” in which he raised objection to the promotion of Love Jihad. As was expected, YouTube took down the video calling it “hate speech”. Another video by the channel was removed by YouTube citing that it violated “Child Safety Policy”. Interestingly, that video that was removed was about analysing the Uttar Pradesh elections.
On the 5th of July, YouTube even informed that the videos were being taken down due to mass reporting of the content. On the 14th of July, Sab Loktantra appealed the take down of the videos and on the same day, YouTube emailed back saying that the UP election video did not violate any of their community guidelines.
Then, in August, YouTube took down a video where the channel spoke about certain Rohingya criminals being arrested. Thereafter, YouTube suspended the entire channel without an adequate explanation.
According to the IT guidelines, intermediaries become publishers if they arbitrarily decide the content that can or cannot be allowed on their platform. The entire chronology of events points to the fact that YouTube is not adhering to the IT guidelines and actually acting as a publisher, not an intermediary.
What are the problems and what the government can do
It is evident from the case studies that while social media giants have claimed that they have adhered to guidelines issued by the central government, in practice, they have tried everything to subvert the process. While the law requires Facebook, Twitter, Instagram etc to have human intervention and the appointment of a grievance officer, social media giants have resorted to simply adding the name and email of the officer, however, the responses that users are receiving are automated.
In essence, big tech is hoodwinking the government into believing that the guidelines are being followed.
The mainstream media has failed to report this issue, due to their inherent biases, the government, therefore, needs to speak to users of these social media platforms who can adequately apprise the government of the issues being faced and how the guidelines are not being implemented in practice. There is no mention in the end that IT Rules allowed Govt step in if grievance officers fail to resolve the issue, and the govt should now
