The government of India had recently brought in place Information Technology rules (Guidelines for Intermediaries and Digital Media Ethics Code) 2021. The rules are a step to provide a much desired certainty to the digital ecosystem.
“Under the Rules, both government and industry expect each other to act objectively and fairly in the interest of consumers. However, in their current form, the Rules do not envisage any engagement with consumers or consumer representatives in their design of enforcement. Consumer welfare needs to be the guiding principle for the Rules to be successful,” noted Pradeep S Mehta, Secretary General, CUTS International.
The reliance of the intermediary guidelines on periodic disclosures to address information asymmetry concerns have been ineffective in the past. Intermediaries are expected to design internal due processes to redress user grievances and follow principles of natural justice during content takedown
The Code of Ethics for Digital Media envisages a three-tier grievance redress structure, in which the first two tiers are dominated by the industry and last one by the government. Despite a welcome consumer centric move, no role of consumers or consumer organisations has been envisaged. “Absence of consumer participation may result in such reforms stopping short in their tracks”, added Mehta.
A recent study by CUTS was done in order to understand the consumer’s perception on encryption, reveled that the consumers acknowledge the value unlocked by instant messaging services, while also appreciating the privacy and security benefits offered. Consumers’ usage of such services may reduce should such additional benefits become uncertain and consumers understand this fact.
Privacy was recorded as one of the top three benefits of instant messaging services.
Therefore, any suggestion to direct intermediary to identify the first originator of information must be viewed with caution. While the Rules provide that less intrusive means need to be exhausted before, there is no clarity on who will decide this test has been passed.