Indians can't be treated as guinea pigs anymore

After a week full of intense drama and screaming headlines as social media giants and the Indian government/law enforcement agencies took the knives out in the open over new IT rules as well as spread of misinformation, millions of Indians were left with a burning question: Where does all this lead as the spread of fake news continues unabated?

Amid an absence of a dedicate law on misinformation -- as other nations move on to penalise social media firms (Russia has just fined Twitter about $259,000 for its failure to remove banned content) -- India currently has an insufficient IT regime to regulate social networks, which have grown so big that taming them need more than just firing notices every now and then.

In this debate, users in India have been worst hit, facing humongous difficulties in removing or disabling access to the spread of fake news/misinformation about themselves on the social media platforms.

Leading cybersecurity experts feel that India needs to give a strong message to social media companies that users cannot be treated as guinea pigs in terms of publishing and transmission of fake news/misinformation.

"India has failed to control the spread of fake news, primarily because regulating misinformation has never been a political priority. India has allowed itself to lag behind in the race of nations in this regard, while smaller countries like Malaysia, Singapore and France have come up with dedicated legal frameworks to deal with misinformation," leading cyberlaw expert Pavan Duggal told IANS.

The Indian Information Technology Act, 2000 is not a law on fake news. Consequently, even the amendments to the IT Act, 2000 by virtue of the IT (Amendment) Act, 2008 did not deal with fake news, barring inserting Section 66A.

The Section 66A made it an offence when somebody sends any information which he knows to be false, but which is sent for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.

However, the Supreme Court struck down the Section 66A as an unconstitutional vide judgment in the case of Shreya Singhal v/s Union of India in the year 2015.

"Since then, India has not had the political vision and determination to go ahead and fight fake news/misinformation," said Duggal, also a seasoned Supreme Court lawyer.

While moving ahead with implementing its user privacy policy from May 15 and suing the Centre over the chat 'traceability' demand, WhatsApp made it clear that it "will maintain this approach until at least the forthcoming PDP (personal data protection) law comes into effect".

The picture is transparent. They know that India lacks a strong data protection law like the GDPR (General Data Protection Regulation) in the European Union (EU).

India is trying to make a feeble attempt to regulate some portion of fake news/misinformation by the new IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

"However, this is nothing but tantamount to provide lip-service to fight misinformation. No consequences for non-compliances for the users have been stipulated under the IT Rules, 2021," Duggal informed.

Actually speaking, misinformation has not been directly detailed under any legal provision in the country.

According to Jiten Jain, Director, Voyager Infosec and a leading cybersecurity expert, social media firms are the new avatars of digital East India companies.

"They are defying our existing laws and are meddling with our policy-making process which is the function of the government. Twitter should not bully India to influence its policies, work like a private company, comply with the law of the land and pay taxes on the money they make on Indian data," Jain told IANS.

The absence of a political will to take action against social media firms has further emboldened them to often adopt unilateral and arbitrary measures.

Virag Gupta, the lawyer of former RSS ideologue KN Govindacharya, who is arguing the social media Designated Officers' matter before the Delhi HC, said that as per new IT rules, social media firms must have their grievance officers in India, and not abroad.

"These companies are stakeholders in the intermediary rules and must comply with new rules. Despite judicial challenge to limited aspect of rules, WhatsApp and other significant social media firms are duty bound to comply with IT rules within the stipulated time period," Gupta said.

What are the options for India? Apart from a dedicated law on misinformation, the first option is to effectively enforce the provisions of the new IT rules that need to be adhered by social media intermediaries, and then put the personal data protection law in place.

The country also needs to come up with effective legal provisions stipulating the consequences to be faced by social media firms, in case they fail to act.

"This could mean not just stipulating stringent liabilities including fine ranging from Rs 5 crore to Rs 15 crore" and a term which "may be extend to 7 years as also with minimum fine of Rs 25 lakh per incident of fake news/misinformation transmission," Duggal added.

Other than the legal options, India needs to demonstrate a strong political will and thought leadership to curb fake news/misinformation online.