And the real center of the whirlpool is a giant like Facebook.
Editor’s note: This article is from WeChat public account “Zhixiang.com” (ID: Passagegroup), author Li Qinwei Yuanyuan.
Recently, the Indian media Mint reported that the Indian social media regulation law was introduced at the latest in January next year, which immediately triggered market attention. China and India are two countries with a population of over one billion, but India has a younger population, making him the main battleground for global social media. In the case of Facebook and Twitter, the number of Indian users exceeds that of the United States. And TikTok has sprung up in the world, and the contributions of Indian users have also contributed.
Therefore, any change in the law has attracted the attention of different players.
The so-called “Indian Social Media Regulatory Law” refers to the 2018 amendment of the Information Technology Internet Media Intermediary Guidance Regulations (Information Technology Infrastructures (Amendment) Rules 2018, hereinafter referred to as the “2018 Amendment”). At the end of December 2018, the Indian government had published a draft to solicit opinions from the public and relevant parties. The legislature has expressed the hope that the draft will become a formal law before the 2019 election, governing false news on social media, inter-party attacks, hateful and inflammatory speech, adult and child pornography, and split state speech.
However, when the draft was announced, it immediately caused an uproar. Many Indian commentators are blunt, “The Indian government wants to start monitoring the people’s remarks,” and “freedom of speech will be suppressed by this law” and other comments. The social media giant has not yet expressed its position. Two Indian citizens “come up” and filed a Public Interest Litigation against the Indian Supreme Court to initiate a constitutional review, which is considered to violate citizens’ freedom of speech.
Then, the decree immediately entered “Indian time.” Social media giants mobilized their own lobbying machines to express their interests to the Indian government. The government, business and legal circles then began rounds of rounds of consultations. Due to differences in interests of the parties, the draft has not yet passed. Recently, the highest law of IndiaThe hospital requested that the government must give a final timetable. Under pressure, the Indian government replied to the Supreme Court and hoped to delay it for another three months, that is, by the end of January 2020. It is reported that the latest version of the draft has been submitted to the Indian Ministry of Justice for review.
Why is this draft triggering a rebound in Indian society? Let’s analyze the core chapters first.
The bill requires Internet intermediaries such as social platforms to add provisions in user agreements or privacy policies that prohibit users from uploading, storing, publishing, and disseminating the following information:
(1) Information that harms public health and safety (
(2) Promotional content of addictive items such as cigarettes, alcohol, and nicotine;
(3) Information that threatens critical information infrastructure (threatencriticalinformationinfrastructure).
The above three types of information prohibiting the dissemination are new additions to this 2018 amendment. The previous 2011 Information Technology Internet Intermediary Guidance Regulations have banned the spread of violations of the rights of others, violations of laws, viruses, and national security. Infringement of intellectual property rights, defamatory and other information.
The controversy is that the law does not provide specific explanations for what constitutes “harmful public health and safety”, so there is criticism that this is a “pocket clause” that forces social platforms to do further A broad understanding, such as the promotion of a certain food can cure the disease, but in fact, information that is harmful to health (refer to the health information of the potholes), information that encourages suicide, and so on.
In addition, it is precisely because there is no definition of “endangering public health and safety” that the community believes that this article violates citizens’ basic rights to freedom of speech. Article 19 of the Constitution of India gives citizens the freedom to speak. Only the six reasons (national security, public order, etc.) stipulated in Article 19(2) of the Constitution can limit citizens’ freedom of speech and endanger public health and safety. Not one of six reasons. The Supreme Court held that the reasons for restricting freedom of speech should be interpreted in a narrower manner and cannot be extended. Therefore, this new clause should be further modified in the final law.
Secondly, the information media such as the social platform should cooperate with the law enforcement department within 72 hours after receiving the formal notice or order from the law enforcement department to help investigate and discover illegal information and protect network security. Government agencies can ask social platforms to trace and provide sources of hazard information and provide information about the publisher.
In other words, the social platform is obligated to provide registration information and IP addresses such as mobile phone numbers, names, and other social accounts that harm the information publisher. But until today, WhatsApp has not been provided to the government. It is understood that there are currently 230 million Indians using WhatsApp, India is the largest market for WhatsApp. The Indian government has long been plagued by false news, hate speech, party attacks and other content spread on WhatsApp. It has repeatedly asked WhatsApp to provide the source of fake news, but each time it is used by WhatsApp to use peer-to-peer terminal encryption (endtoendencryption) To disseminate information, only the sender and the receiver can see the information, and the operator cannot trace the source of the information because it cannot cooperate with the government’s investigation.
The source said that if social media is required to provide information to the government within 72 hours, it will need to change the programming framework of WhatsApp. This will be a downsizing for WhatsApp and economically unrealistic. After many discussions between WhatsApp and the Indian government, the outcome is still unknown.
In addition, Internet agencies such as any social platform will remove harmful content such as endangering national sovereignty, violating public safety, violating public orders, jealousy, hate speech, etc. within 24 hours after being notified by the court and the government. In addition, user-related information and published content should be kept for 180 days (the original rule is 90 days) for the investigation of law enforcement agencies. At the same time, the platform should also set up an automatic detection system to identify the hazard content and automatically prohibit the public from accessing such content.
The above provisions for automatic detection systems may be in violation of the legal interpretation of India’s Information Technology Act, Section 79(3)(b), in the case of ShreyaSinghalv.UnionofIndia. In this case, the Supreme People’s Court held that the Internet intermediary platform could not delete or block certain categories of content on the basis of the user’s request, because the Internet intermediary platform could not judge whether such content was illegal or not, and must receive an official order from the court or the government. The order can be deleted. That is to say, the automatic detection of Internet mediation and the automatic prohibition of harmful content are violations of this case law. We will wait and see if this article can pass the legislative review directly or need further revision.
Finally, the 2018 Amendment stipulates that a social platform with more than 5 million Indian users must register in India under the Indian Companies Act to provide a physical office address and set up a liaison officer (nodalperson) to be responsible for Docking and compliance work by government regulators.
The current amendment does not stipulate how to calculate the number of users of 5 million. Is it a registered user or a daily active user? These need to be clarified in the formal law, but for social media, if you are optimistic about the Indian market, you should register your company in India as early as possible so as not to delay the development plan.
There are people in the industry who have commented that social media that meets the standards can not only strengthen the cyber security supervision, but also strengthen the supervision of social media from the perspectives of taxation and trade. It can also promote employment and gain more. But for social media, the corresponding costs will increase.
and really in the center of the vortex is a giant like Facebook. When the 2018 amendment came out, the Indian government also proposed a data localization program. These two decrees constitute the core element of the narrative of the conspiracy theory, and the object of being hunted is WhatsApp.
Since WhatsApp announced its online payment in India and copied the WeChat road, its troubles began. Indian entrepreneurs worry that once the plan is implemented, WhatsApp will take advantage of its huge social media to crush local rivals. However, due to the joint opposition of Indian domestic interest groups, WhatsApp payments can only be first settled in Europe.
It is foreseeable that if the 2018 amendment is passed untouched, WhatsApp social media will be shocked and even shuffled. And this inevitable “fish and fish” – ambitiously expanding Chinese companies in the Indian market.
Of course, the possibility of passing the 2018 amendment is extremely low. After all, citizens’ freedom of speech will touch the sensitive nerves of Indian public opinion. At this point, the public and social media giants stand together. For example, the old law requires automatic detection and identification of harmful information on social media, and automatically deletes the hazard information (and the identification of the hazard information lacks the authority’s identification), and also requires social media to track and disclose the hazard information. origin of.
This wave of operations is likely to crack down on citizens’ freedom of speech because it is possible that citizens’ free speech will be identified as harmful information, and personal information will be disclosed, so that the government will then supervise its words and deeds. And citizens are afraid to publish the possibility of criticizing the government’s remarks.
At present, four public interest cases were heard in the High Court of Madras, the High Court of Mumbai, and the High Court of Madhya Pradesh. They requested the court to order the Aadhaar (India National Identity Card) card to be bound to major social media accounts such as Facebook. , that is, the real name system registration. Facebook requested that all cases be referred to the Supreme Court for a merger and that the Supreme Court agreed. If the social media real name system is recognized by the Supreme Court, coupled with the strong regulatory policy of the 2018 amendment, Indian social media will undergo tremendous changes. Of course, we can see that the network environment can certainly be purified, but it also damages the freedom of speech of citizens to a certain extent, and then corrodes India’s democratic system.
A lot of social media giants are entangled in public interest litigation in India because the content on the platform is suspected of being illegal, and the platform is not considered to have adequate responses. It’s time for various Internet mediation platforms to think about a set of solutions to regulatory changes (such as the social media with more than 5 million users mentioned above need to register in India), after all, the Indian government promised to introduce it in January next year. The latest amendment is not far off.
About the author
Li Qin: India DahengConsultant of Fucheng Law Firm, graduated from Tsinghua University Law School, went to the National University of India Law School to study for Master of Business Law, and has the “India Investment Practice Guide” (Legal Press 2017 Edition), “Indian Corporate Law Essentials” (Law Publisher 2019 edition).
Wei Yuanyuan: Consultant of Daheng Yucheng Law Firm of India, graduated from Shanghai International Studies University, and studied in India with a Master of Laws (Intellectual Property Law) degree from Indian Law Institute (Indian Law Institute). Wei Yuanyuan has served as an assistant to the Chinese Embassy in India and has extensive experience in both China and India.