Trump's executive order may lead to stricter social media rules in India

At a time when US President Donald Trump has signed an executive order aimed at increasing the ability of his government to regulate social media platforms, its ripple effects are expected to be seen in India as well. On one hand, it may increase the accountability of social media platforms such as Twitter, Facebook, Google and TikTok for hosting fake news and disinformation, it is also expected to bolster the Indian government’s intent to promulgate laws for bringing in greater control on them.

“The actual problem with the executive order is what it signals for platform regulation worldwide. The White House is signalling that it’s okay to add further regulations on platforms and how they deal with content,” said Salman Waris, managing partner at New Delhi-based specialist technology law firm TechLegis Advocates & Solicitors. “This is especially concerning in the Indian context. India is already amending its Information Technology rules. It is considering enforcing, among other things, obligations on social media platforms to ensure, there is traceability of originators of a message or update and proactive takedown of content,” he said.

Experts said the impact of face-off between Trump and Twitter' will not be felt in the US for now unless the Federal Communications Commission issues some regulations. Digital rights activist Nikhil Pahwa, however, believes that in terms of its impact on India, this will give a sort of fillip to the government's plans to regulate social media platforms. The Ministry of Electronics and Information Technology (MeitY) was already looking to increase regulation through amendments to IT Rules that were originally notified in 2011. “The process began last January and there was a pushback from civil society as it could impact free speech,” said Pahwa, who is also a co-founder of Internet Freedom Foundation and SaveTheInternet.in. “But this move by President Trump might make the Indian government feel justified in increasing regulation on social media. And, we may witness further amendments to the IT rules that have not been finalised yet,” he said.

MeitY has prepared the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 in order to prevent the spread of fake news, curb obscene content on the internet, prevent misuse of social media platforms and provide security to the users. The said rules categorically specify that the intermediaries must inform the users of the computer resource about the rules and regulations and privacy policy so as to not to host, display, upload, modify, publish, transmit, update or share any information which might affect public health and safety. The rules further provide that whenever an order is issued by the government agencies seeking information or assistance concerning cybersecurity, the intermediaries must provide them the same within 72 hours.

“While the said rules have not yet been finalised but there is much concern among the social media service providers about the strict obligations provided under this,” said Waris of TechLegis. “So effectively in Indian context, Trump's actions might lead to India’s IT Minister Ravi Shankar Prasad saying his Ministry is justified in proposing or demanding these amendments. And we’ve seen that from him before. When the US, UK and Australia urged Facebook to not implement end to end encryption on its messaging platforms, Prasad used that as a justification for pushing for traceability on WhatsApp,” added Waris.

“The Indian government should not attempt to copy the illegal and legally problematic move made by the president Trump and White House,” said Raman Jit Singh Chima, Asia Policy Director and Senior International Counsel at Access Now, an organisation which defends and extends the digital rights of users at risk around the world.

“In India the impact it would have is on national policy-making and may change the way policymakers think about the problems,” said Kiran Jonnalagadda, founder of Bengaluru-based tech community HasGeek. “For example, it is completely within the power of the government to pass an ordinance to say that they are amending the IT act,” Jonnalagadda said.

In light of the Covid-19 crises, MeitY in March this year had also advised social media platforms to curb fake news and misinformation with regard to coronavirus. The advisory obligated the social media platforms to inform their users not to host, display, upload, modify, publish, transmit, update or share any information that may affect public order and unlawful in any way.

In view of the Covid-19 crisis and the face-off between president Trump and Twitter, Pavan Duggal, a top cyberlaw expert and a Supreme Court lawyer said that the Indian government can revisit their legal framework and make the intermediaries like social media platforms more amenable to the national laws and force them to comply with those.

“I think this could trigger off a new process where governments could increasingly mandate social media service providers to do more compliances, otherwise making them liable,” said Duggal. “Giving absolute immunity doesn’t make sense during the Covid-19 times. You cannot have them (social media platforms) as a spectator. You need to have them to be proactive to prevent cybercrime,” he added.

Duggal said that due to the Covid-19 crisis, societies were entering into a new cyber age which would be completely different. “I call it the ‘new cyber world order.’ The states are going to become more powerful after Covid-19 and there would be an increase in infringement of civil liberties and intermediaries (social media platforms) would play a very important role in that scenario,” he said.

Timeline:

May 25: Facebook user posts video showing George Floyd, a 46-year-old black man being killed by police outside a convenience store in Minneapolis, US

May 26:  The FBI and Minnesota crime bureau launch an investigation. Four police officers involved in the incident are sacked. Protests begin in Minneapolis

May 28: Protests intensify due to lack of action and Minneapolis Police's Third Precinct Station is set on fire

May 29: President Trump tweets, "These THUGS are dishonoring the memory of George Floyd, and I won’t let that happen. Just spoke to Governor Tim Walz and told him that the Military is with him all the way. Any difficulty and we will assume control but, when the looting starts, the shooting starts. Thank you!”

May 29: Twitter flags the tweet saying it violated rules about glorifying violence. On the same day, Trump signs "Executive Order on Preventing Online Censorship"; draws flak from Opposition as it is widely seen as a retaliation against Twitter for fact-
checking the tweets

Fallout: Trump’s order achieves little, but remains a threat that could change the way internet works, especially in India where the Indian government might feel justified in increasing regulation on social media