Ritika Jayakrishnan, School of Law, CHRIST (Deemed to be University), Bangalore
ABSTRACT
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 replaced its old provisions on Social Media Intermediaries. The amendments to the IT Rules imposed a legal obligation on the intermediaries to take preventive steps to disable users from uploading certain ‘unlawful’ content. Even though the new amendments require the intermediaries to protect the rights guaranteed by Part III of the Constitution of the users, there have been multiple instances wherein content uploaded has been blocked or partially restricted to viewers without their knowledge. In most circumstances, the restriction of such content is arbitrary wherein intermediaries take complete control over the circulation of content in secrecy. This process is overtly known as ‘Shadow- banning’. Shadow-banning is a silent way of restricting a user from getting views. It is content moderation and unreasonable concealment done by social media intermediaries that has no legal backing what-so-ever.
Intermediaries are meant to safeguard Articles 14, 19 and 21 of the Constitution of India while dealing with users of social media. This includes ‘reasonable restrictions’ embodied under Article 19(2). Thus, is it safe to state that intermediaries do have more than a mere formality to ensure that certain categories of harmful, unlawful, misinformation and content that would incite violence amongst different groups must be controlled, as mentioned under Rule 3(1)(b). However, there has been a mass misuse of these rules wherein intermediaries have been accused of restricting certain content that may disrupt its outreach. This has been linked to many political outbursts, anti-right-wing agendas, LGBTQ+ content, amongst others. The IT Rules touch upon the regulation of social media but only so far as they relate to the removal of obscene or offensive content. The recently released Digital Personal Data Protection Act, 2023 failed to provide any legal recourse in the event of exploitation of intermediaries. Even though the IT Rules provide for the establishment of Grievance Appellate Committees, there are no real powers delegated to it that could help users against issues such as shadow-banning. Thus, this paper will essentially analyse the concept of shadow-banning with respect to the IT Rules, 2021, specifically Rule 3(1)(b) and (c) as well as Article 19(1)(a) and 19(2) of the Constitution of India.
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