Analysis Of Shadow-Banning And Information Technology Rules 2021 Through The Eyes Of The Constitution
Author: LawSphereX
Category: Constitutional & Human Rights
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ANALYSIS OF SHADOW-BANNING AND INFORMATION
TECHNOLOGY RULES 2021 THROUGH THE EYES OF THE
CONSTITUTION
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 ‘Shadowbanning’. 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.
INTRODUCTION
The concept of Shadow-banning has been broadly practiced by social media intermediaries by using the veil of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. As we know, the Information Technology Act 2000 gives the power to the government to enact certain rules and regulations through which the Information Technology Rules of 2011 was framed specifically to establish the due diligence requirements for intermediaries to claim exemption from liability for any third party information. Subsequently, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were brought in to replace the 2011 rules and with it came a number of changes.
These included additional due diligence requirements for certain social media intermediaries, and a framework for regulating the content of online publishers of news and current affairs, and curated audio-visual content. 1 Additional due diligence is also required from Significant Social Media Intermediaries. Social media intermediaries are defined by the
2021 Rules as those who facilitate online connection between two or more users exclusively.
Significant social media intermediaries are defined as intermediaries having more registered users than a certain notification threshold (SSMIs). SSMIs are required to appoint Chief Compliance Officers and Grievance Officers2 that ensure that the rules are followed by the intermediaries. An SSMI, which mainly offers messaging services, needs to make it possible for users to identify the original source of content on its platform within India. A court order or an order from the appropriate authority under the IT Act may compel this. These orders will be granted for specific reasons, such as the prevention, identification, and inquiry of specific offences like those pertaining to public order, national security, and sexual assault. If a less invasive method could be used to identify the original author, such an order would not be granted.
A Significant Social Media Intermediary has more stringent due diligence processes and thus to ensure that all users follow the rules put forward by the regulation, it is unambiguous that a lot of content has either been blocked or sometimes even been deleted from the sites. This is shadow banning, especially when such an act is done with ulterior motives. Rules 3 (1) (b) and (c) gives the intermediaries the power to ensure that nothing unlawful has been uploaded onto the internet and that all users must strictly follow the rules put forward. However, when the government uses its power to interpret statutes and thus removes certain
1 Official Debates, Rajya Sabha, July 26, 2018.
2 Rule 4, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
content off the intermediary, it can be said to violate Article 19 of the Constitution of India. Even when reasonable restriction are provided to intermediaries, in most cases it can be observed that more often than not, content has been removed based on political or religious agendas against minority groups. This removal of content by the government’s mandate is shadow banning and the same is being done by using the face of Information Technology Rules
2021. The Information Technology Rules 2021 lawfully allows for the removal of content when
certain instances have been followed. These include when the content is (i) "detrimental to children," (ii) “insulting on the basis of gender” and (iii) "knowingly and intentionally disseminates any information that is obviously false or misleading but could be reasonably interpreted as fact."3 Some of these limitations are arbitrary and overly restrictive, which could have a negative impact on intermediary platform users' freedom of speech and expression. However, the concept of shadow banning does not overlook these very real problems that social media intermediaries face, it only suggests that when intermediaries take down or hide content that do not cause any harm to the public, it is violative of Article 19 and to use the name value of the IT rules is unlawful for the same.
RESEARCH QUESTION
Whether the arbitrary use of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 would lead to a violation of Article 19 of the Constitution, or would the same fall within the purview of the reasonable restrictions under Article 19 (2)? Is the concept of shadow-banning legal even when it is done outside the bandwidth of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and Information Technology Act, 2000?
RESEARCH OBJECTIVES
To analyse the scope of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and whether they violate the Fundamental Right of Freedom of Speech and Expression. 3 The Information Technology (intermediary guidelines and Digital Media Ethics Code) rules, 2021 (2023) PRS Legislative Research. Available at: https://prsindia.org/billtrack/the-information-technology-intermediaryguidelines-and-digital-media-ethics-code-rules-2021 (Accessed: 27 October 2023).
To analyse the concept of Shadow-banning and to assess whether it is an unconstitutional act to do the same without the consent and knowledge of the users of Social Media Intermediaries.
HYPOTHESIS
The concept of Shadow-banning is unlawful because of the fact that Social Media Intermediaries may take down content only based on certain circumstances as mentioned in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021. However, more often than not, these instances are very vague leading to an arbitrary
interpretation of what should be removed, and what should not. This causes a wide lacuna in Article 19 (1)(a) of the Constitution of India.
LITERATURE REVIEW
The author of this paper has referred to an article titled “Free Speech Is Not Free Reach: A Foray into Shadow-Banning” authored by Riya Sharma and Atulit Raj. 4 The authors state that in the contemporary era, social media has become an indispensable platform for public discourse, playing a pivotal role in shaping opinions and influencing societal change. However, the power dynamics inherent in social media platforms often result in the suppression of certain voices, hindering the free expression crucial for societal progress. This literature review delves into the practice of shadow-banning, an increasingly employed form of content moderation, and assesses the adequacy of existing legal frameworks, particularly in the context of artificial intelligence (AI) in content moderation.
Content moderation, a crucial aspect of social media management, involves determining the visibility of user-generated content. Shadow-banning, a nuanced approach to content moderation, reduces the visibility of specific users without formally notifying them. This method allows platforms to maintain deniability and creates an environment where affected users experience reduced interactions and lower post visibility. The authors opine that the relationship between shadow-banning and machine learning algorithms is evident, with AI 4 Sharma, R. and Raj, A. (2023) ‘Free Speech Is Not Free Reach’, Tech Law Forum NALSAR. Tech Law Forum NALSAR, 31 January. Available at: https://techlawforum. nalsar. ac. in/free-speech-is-not-free-reach-a-foray-intoshadow-banning/ (Accessed: 28 October 2023).
playing a significant role in discerning content acceptability. However, the inherent biases within algorithms raise concerns about fairness and equity in content moderation. The secretive nature of shadow-banning policies, coupled with the lack of disclosure to affected users, highlights the opacity in algorithmic governance. The bias present in algorithms, as observed in other contexts such as judicial decisions, poses serious implications for social justice. Instances of algorithms misinterpreting content, especially regarding sensitive topics like nudity and diversity, emphasize the need for a critical examination of AI's role in content moderation. The authors state that the absence of specific laws governing shadow-banning and AI in India raises questions about the adequacy of existing legislation.
Globally, the European Union's Data Service Act sets a precedent by mandating transparency in content moderation rules and providing mechanisms for user redress. In the United States, proposed legislations seek to modify Section 230 of the Communication Decency Act to address shadow-bans, reflecting a global concern for regulating social media practices. To conclude, the authors put forward that it is important to address the issue of shadow-banning as it requires a multi-faceted approach. Firstly, legal frameworks, such as the Digital Personal Data Protection Act, can be refined to include specific provisions against unjustified content visibility restrictions. Secondly, recognizing the limitations of AI, a hybrid approach involving human moderators for nuanced cases is suggested to mitigate biases.
Lastly, establishing mechanisms for user feedback in the AI classification process can enhance transparency and inclusivity. These recommendations are essential for fostering an environment where AI technologies serve public good while upholding principles of fairness and freedom of expression. The ongoing global discourse on social media regulation provides an opportunity for India to adopt similar approaches and create a robust legal framework for content moderation in the digital age.
CHAPTERIZATION
1. CHAPTER I - Shadow-Banning: Unveiling the Concept
1. What is Shadow-Banning?
2. Instances of content blocking or restriction without user knowledge
3. Lack of legal backing for shadow-banning
2. CHAPTER II - Legal Framework and Constitutional Perspective
1. Legal obligations of intermediaries under the IT Rules
2. Protection of user rights guaranteed by Part III of the Constitution
3. Analysis of 'reasonable restrictions' under Article 19(2)
3. CHAPTER III - Regulatory Gaps and Proposed Legislation
1. Evaluation of the IT Rules and their limitations in addressing shadow-banning
2. The role of Grievance Appellate Committees and their limitations
4. Recommendations and Solutions
5. Conclusion
1. CHAPTER I - SHADOW-BANNING: UNVEILING THE CONCEPT
1. What is Shadow-Banning?
The concept of Shadow-Banning is fairly new and it is being used for content moderation even when Social Media Intermediaries have their own algorithms. This essentially means that the content visibility would go down instead of removing it as a whole. The reality of Shadow- Banning is that the creator of such content is not aware of the low visibility rate of their work and this is where the intermediaries can be said to be in violation of Article 19(1)(a) and also beyond reasonable restriction. Shadow-banning is the practise of concealing a user's posts or activity from other users without notifying or officially banning them. Unlike other content management techniques, shadow-bans don't notify users of their implementation, allowing platforms to deny that they were instituted in the first place. Reduced post visibility and fewer interactions with the account may arise.
Social media sites have made it clear that fine art posts containing non-pornographic nudity are allowed, but content featuring nudity, dark-skinned, obese, females, or people belonging to the LGBTQ+ community is likely to be removed by an algorithm. It is said that the algorithms were developed with user interests in mind. Facebook, for example, had a covert programme called "XCheck" that gave certain users—mostly prominent accounts—permission to post content that went outside the company's guidelines. Even though the algorithms appear to have problems, it is now necessary to address the issue of AI's power over social media material, even with the best of intentions. 5 The process of Shadow-Banning is one that reeks of control over the users of Social Media Intermediaries because there is no legal backing for it.
It is simply done based on what the government and other parties involved interpret the content to be. According to a report from Comparitech, a UK-based technology research company, India leads the world in takedown requests, accounting for nearly a fifth of such removal requests over nine years to July 2018, rising over 200% from 6,843 requests in 2013 to 20,805 in 2018. 6 5 The Information Technology (intermediary guidelines and Digital Media Ethics Code) rules, 2021 (2023) PRS Legislative Research. Available at: https://prsindia. org/billtrack/the-information-technology-intermediaryguidelines-and-digital-media-ethics-code-rules-2021 (Accessed: 27 October 2023).
6 Bischoff, P. (2021) Which government censors the tech giants the most?, Comparitech. Available at:
https://www.comparitech.com/blog/vpn-privacy/tech-giant-censorship/ (Accessed: 27 October 2023).
2. Instances of content blocking or restriction without user knowledge
There are multiple instances wherein the general users of different social media have felt the sudden droppage of the visibility of their content. During the COVID-19 pandemic, there were many posts posted online to amplify the requirement of oxygen cylinders amongst other medical necessities. However, the users found that their posts identifying sources for such requirements and their dialogue against the government in charge were disappearing overnight. To take this to another step, the BBC documentary known as “India- The Modi Question” was taken down by the Government of India by using the Information Technology Rules stating that they were “blocking of information in case of emergency”, as per Rule 16. This shows that the Government through the IT Act and the IT Rules has the discretion to analyse and interpret content such that it has a digital authoritarian power.
The removal of the documentary caused a lot of backlash for the BJP government, however they did not revive the same. Similarly, many influencers on multiple social media apps such as Instagram observed that the posts they created on the Israel – Palestine conflict did not receive much visibility. They were not deleted by the intermediaries however, they were hidden from the audience. This act is shadow-banning and in countries like India, even though laws do not allow for such censorship, laws also do not prohibit the same. The arbitrary limitations placed by social media platforms on the visibility of content are not mentioned. The Information Technology Rules 2021 gives the government the power to take down accounts and posts it deems unfit, and intermediaries must follow the instructions given by the government.
As observed in the case of Twitter, when the company did not comply with the Indian government’s instructions, the government warned them of their liability, after which the company had complied to their rules. 7 More government control over intermediaries is ensured by the regulations of 2021. In the event of noncompliance, intermediaries will lose the "safe harbour" provided by section 79 of the IT Act and become legally accountable for any content posted by a third party.
3. Lack of legal backing for shadow-banning
The government does have the power to remove content that it deems unfit based on the following grounds- “the interest of the sovereignty and integrity of India, defence of India, the security of the state, friendly relations with foreign states or public order or for preventing
7 Section 79 of the Information Technology Act, 2000.
incitement to the commission of any cognisable offence relating to the above. ”8 Such grounds are very ambiguous and can be interpreted to mean much more than it does. The government uses this to remove content from intermediaries. This is provided under section 69A of the Information Technology Act 2000, and was also proven to be constitutionally valid. 9 The difference between this and Shadow-Banning however is that in the latter, the government and intermediaries hide or remove posts without the consent of the creator and it is only known due to lower visibility rates that it is known to the creator that their content was shadow banned. Artificial intelligence and shadow bans are unregulated in India; a comparable exclusion is found in the Information and Technology Act, 2000.
The recently released Digital Personal Data Protection Act, 2023, did not offer users any legal recourse against the exploits of social media platforms, despite speculation that it would include provisions addressing shadow-bans. The impacted users in India are left without access to justice because there is no redressal mechanism in place. In addition, social media regulations are mentioned in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, but only to the extent that they have to do with taking down objectionable content. The arbitrary limitations placed by social media platforms on the visibility of content are not mentioned.
Thus, there is a very large lacuna wherein the Information Technology Rules and Information Technology Act do not give the users of Social Media Intermediaries any legal recourse if their content has been shadow banned. The requirement for regulations for such arbitrary Shadow- Banning is very high especially in this day and age wherein the government has been mandating such strict compliance policies.
8 Section 69A of the Information Technology Act, 2000.
9 Shreya Singhal v. Union of India AIR 2015 SC 1523
2. CHAPTER II - LEGAL FRAMEWORK AND CONSTITUTIONAL PERSPECTIVE
1. Legal obligations of intermediaries under the IT Rules
In 2008, the Information Technology Act 2000 underwent an amendment that released intermediaries from liability regarding any information provided by third parties. In response, the Information Technology Act was used to create the Information Technology (Intermediary Guidelines) Rules, 2011, which outline the due diligence requirements that intermediaries must meet in order to be eligible for this kind of exemption. On February 25, 2021, notice was given that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 would be replacing the Rules from 2011. An intermediary is not responsible for the third-party data it transmits or holds, according to the Information Technology Act.
It must, however, abide by the Information Technology Act's due diligence requirements as well as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (which supersede the previous 2011 Rules) in order to assert such an exemption. A grievance redressal mechanism for users and affected parties, along with the designation of a grievance officer, were among the requirements under the 2011 Rules. These included: (i) defining, in service agreements, the categories of content that users are not allowed to upload or share; (ii) removing content within 36 hours of receiving a court or government order; (iii) supporting law enforcement agencies; (iv) keeping blocked content and associated records for 90 days; and (v) offering assistance to law enforcement agencies. These specifications are kept in the
2021 Rules, but they also (i) change the kinds of content that users cannot upload or share, and
(ii) set more stringent deadlines for the aforementioned requirements. Intermediaries are subject to regulations under the safe harbour model in certain jurisdictions, including the European Union and India. As long as they meet specific criteria, intermediaries are exempted from liability for any unlawful user-generated content under this model. Until they are aware of the illegality and fail to take appropriate action to halt it, the intermediaries are not liable. They have a "duty of care" and "notice and take down" responsibilities to delete unlawful content. 10 In order to guarantee that valid requests for the removal of content were made, the Supreme Court strictly outlined the circumstances in which the safe harbour principle could be waived following the 2015 Shreya Singhal v. Union of India ruling. If 10 Ganesan, A.
(2022) Experts flag free speech and self-censorship in India’s amended it rules, MediaNama. Available at: https://www. medianama. com/2022/06/223-it-rules-amendments-india-free-speech-big-tech/ (Accessed: 28 October 2023).
intermediaries had "actual knowledge" of potentially harmful content on their platforms, they would be legally required to remove it, either through court orders or government directives. The proposed Rules 3(1)(a) and 3(1)(b) completely reverse this precedent by requiring platforms to handle requests for content removal without considering the issue of "actual knowledge." This is blatantly against Shreya Singhal's established law.
2. Protection of user rights guaranteed by Part III of the Constitution
The act of Shadow-banning content under the orders of the government and at times intermediaries is directly affecting certain Fundamental Rights of the Constitution of India. These include Article 19(1)(a) which states that all citizens should have the Freedom of Speech and Expression. 11 This suggests that everyone has the freedom to freely express their thoughts and opinions. This encompasses not just spoken communication but also written words, images, videos, banners, etc. To allow all citizens to participate in the political and social processes of the nation is a fundamental component of a functional democracy. In a functioning democracy, there is plenty of freedom of speech, thought, and expression in all media (written, spoken, broadcast, etc. ).
In addition to international treaties like the European Convention on Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights (proclaimed on December 10, 1948), and others, freedom of speech is protected by the Constitution. This is significant because democracy can only function properly if the populace is free to voice their concerns and, when necessary, criticise the government. People's complaints must be addressed, and their voice must be heard. In a true democracy, the people's voices must be heard not only in the political arena but also in other domains such as social, cultural, and economic. Democracy is threatened if the aforementioned liberties are not present. The government will grow too strong and begin to act more in the interests of a select few people than those of the people as a whole.
Strict restrictions on the freedom of the press and of speech will instil fear, which will lead to people accepting tyranny in silence. In a situation like that, people would feel constrained and would rather suffer than express their opinions.
11 Article 19(1)(a) of the Constitution of India.
The same can be said while analysing the concept of Shadow-banning. The government, by taking down the content of Social Media Intermediary users without their knowledge, is infringing their Fundamental Right to Freedom of Speech and Expression. It is more so a violation when the intermediaries are not directly removing the content posted online but are silently decreasing its visibility as the situation would help the government in charge. This makes it a political move as in majority of the cases observed, the content that has been shadowbanned are those that have to do political opinions that are non-conservative or feminism opinions. More often than not, the content that the present ruling government has restricted has been criticisms on its functions and this was done during election times to reduce the visibility of the content.
This is a direct violation of the Freedom of Speech and Expression clause of the Fundamental Rights as it takes away the users right to freely express their opinions and also in another point of context, it takes away another user’s right to information or the right to view such expression of opinions. Thus, when the government and intermediaries shadow-ban content without using the actual provisions given by the Information Technology Act or Rules 2021, it can be said to be violative of Article 19(1)(a).
3. Analysis of 'reasonable restrictions' under Article 19(2)
Reasonable Restrictions as given in Article 19(2) of the Constitution of India ensures that every citizen does not have an absolute right to Freedom of Speech and Expression amongst other freedoms mentioned in Article 19(1). All Indian citizens are guaranteed the right to freedom of speech and expression by the constitution, but this right is not absolute because Article 19(2) of the document offers a safeguard that permits reasonable limitations to be placed on the use of this right for specific objectives. The constitution's Article 19(2) permits the state to enact laws that restrict the right to free speech and expression as long as those laws do not place any restrictions on the state’s Security such as rebellion, waging war against the State, insurrection and not ordinary breaches of public order and public safety.
The 16th constitutional amendment act added Interest in Integrity and Sovereignty of India in response to the tense circumstances existing in various parts of the country. Decency or morality are added as justifications in Article 19(2) for limiting the freedom of speech and expression. The Indian Penal Code, Sections 292 to 294, lists instances where this freedom is restricted for reasons of morality or decency. The sections prohibit the sale, distribution, and
display of offensive language, among other things, in public areas. Nonetheless, there is no precise definition for the terms "decency" or "morality," and they are highly subjective. It also changes according to the time and place. Thus when the intermediaries and the government strike down content that actually poses a threat to the entire functioning of the state, it would not fall under the ambit of Article 19(1), rather it would be a reasonable restriction. However, when the government orders the take down or shadow-banning of content that is likely to not cause any problem, it would not attract the clause of reasonable restriction as there is no reasonable ground to assume the same.
3. CHAPTER III - REGULATORY GAPS AND PROPOSED LEGISLATION
1. Evaluation of the IT Rules and their limitations in addressing shadow-banning
The Information Technology Rules 2021 does not address the process of shadow-banning and thus does not give any legal recourse for the same. Artificial intelligence and shadow bans are unregulated in India; a comparable exclusion is found in the Information and Technology Act,
2000. The impacted users in India are left without access to justice because there is no redressal
mechanism in place. In addition, social media regulations are mentioned in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, but only to the extent that they have to do with taking down objectionable content. The arbitrary limitations placed by social media platforms on the visibility of content are not mentioned. Shadow-banning is a global problem that is faced even by European countries. Their Digital Services Act also does not provide any legal recourse for shadow-banning. Section 14(1) of the Act states that platforms must codify their policies regarding content moderation. Their Terms and Conditions must specify the limitations they place on user-generated content in "clear and unambiguous language.
" "Any policies, procedures, measures, and tools used for the purpose of content moderation, including algorithmic decision-making and human review," shall be disclosed in this disclosure. Since it reflects the rule of law principles of legality, foreseeability, and accessibility for the imposition of sanctions, this is known as the codification principle. Every moderation action must be accompanied by a "Statement of Reasons" to the impacted user, according to Article 17 DSA. The following details must be included in this statement: The following factors were considered when making the decision: (1) the action taken; (2) the
legal or contractual violation that the action addresses; (3) the facts and circumstances considered; (4) information about the use of automated decision-making in this action; (5) the user's options for redress. At least two separate purposes are served by Article 17: notification and explanation. While explanation seeks to provide justification for the sanctions, notification alerts users to their existence. In the context of (automated) content moderation, explanation is a vital component of due process and presents a number of challenging policy issues. However, these are unrelated to the shadow banning problem, which is essentially a notification issue as was previously mentioned. Indeed, the notification requirement in Article 17 can be interpreted as forbidding shadow banning if it is marked by a lack of notice.
2. The role of Grievance Appellate Committees and their limitations
Decisions made by the Grievance Officers of intermediaries can be appealed to the Grievance Appellate Committee (GAC), which is appointed by the Union and established under Rule 3(3). It's an alternative to filing a grievance with the courts. According to the Rules' current phrasing, it is in charge of all intermediaries as those terms are defined by the IT Act of 2000. In any case, the Rules contain no information about the Committee's composition, its procedures, or how it will handle complaints. Thus, without going into detail about procedure or how it might affect them, the GAC has a significant impact on a user's fundamental rights in its current form. Many intermediaries in India have voiced concerns about the Union-appointed committee's "potential biases in decision-making" and have pointed out that the body lacks independent members.
The Committee's presence could influence how intermediaries influence how users interact with the Internet. According to the regulations, intermediaries are in charge of keeping an eye on everything posted on the Internet; anything can be challenged on any intermediary. The Union appoints the GAC, which is one of the bodies that has the last say on what can and cannot be said online. A requirement that intermediaries uphold the users' Fundamental Rights is also included in the amendments to Rules 3(1)(m) and 3(1)(n), and it may be brought up in an appeal before the GAC. At the GAC, there may be a situation where the Executive is interpreting the law. This is what the judiciary is meant to do. The GAC makes the case for India's Executive branch to have discretionary control over the Internet.
As a result, platforms will be encouraged to suppress or remove any speech that the government or those putting pressure on them find objectionable. This will also increase government
control and power because the government will have the authority to decide what content platforms must display.
4. RECOMMENDATIONS AND SUGGESTIONS.
1. Legal Clarity on Shadow-Banning:
Propose an amendment or addition to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, explicitly addressing the concept of shadowbanning. Define the legal boundaries and procedures for implementing shadow-banning to ensure transparency, accountability, and user notification.
2. Due Process and Transparency:
Advocate for due process rights for users subjected to shadow-banning, including notice, explanation, and the right to appeal. Promote transparency in the algorithms and processes used by social media intermediaries for content moderation, especially in the case of shadow-banning.
3. Independent Oversight and Grievance Redressal:
Call for the establishment of an independent oversight body, separate from the government, to monitor and regulate instances of shadow-banning. Strengthen the role of Grievance Appellate Committees (GACs) by ensuring their independence, transparency, and inclusion of diverse perspectives.
4. Clear and Specific Grounds for Content Removal:
Advocate for clearer and more specific grounds for content removal under the Information Technology Rules, 2021, ensuring that removals are based on legitimate concerns such as incitement to violence or hate speech. Emphasize the importance of adhering to international standards on freedom of expression while addressing concerns related to fake news or misinformation.
5. Public Consultation and Stakeholder Involvement:
Encourage the government to engage in a public consultation process before implementing or amending regulations related to content removal or shadow-banning. Promote the inclusion of diverse stakeholders, including civil society, in the policymaking process to ensure a balanced and representative approach.
6. Review and Refinement of IT Rules:
Call for periodic reviews of the Information Technology Rules to assess their effectiveness and address emerging challenges. Suggest amendments based on practical experiences and changes in technology to make the rules more adaptive and responsive to evolving situations.
7. International Collaboration:
Engage in international collaborations to share best practices and learn from the experiences of other countries in regulating content moderation and addressing issues related to shadowbanning.
8. Capacity Building for Intermediaries:
Advocate for capacity building programs for social media intermediaries to enhance their understanding of legal and ethical considerations in content moderation. Encourage the development of tools and technologies that align with human rights principles and minimize arbitrary content restrictions.
9. Judicial Scrutiny:
Advocate for a robust judicial review process to scrutinize government orders related to content removal or shadow-banning, ensuring that such orders adhere to constitutional principles and international human rights standards.
10. Educational Initiatives:
Support educational initiatives to raise awareness among users about their rights, including the
right to freedom of speech and expression, and how to seek recourse in case of unjust content restrictions. By implementing these recommendations, the aim is to strike a balance between addressing legitimate concerns such as hate speech and misinformation while safeguarding fundamental rights, including the right to freedom of speech and expression.
5. CONCLUSION
To conclude, the paper delves into the intricate web of social media intermediaries, content regulation, and the emerging concern of shadow-banning within the context of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Information Technology Rules introduced in 2021 aimed to establish a framework for intermediary liability, content moderation, and protection of user rights. However, the application of these rules has given rise to the pervasive issue of shadow-banning, an act where content visibility is stealthily curtailed without the user's knowledge.
The analysis has revealed that while the rules empower intermediaries to take preventive measures against the dissemination of unlawful content, the arbitrary nature of these restrictions, often driven by political motives or other biases, raises concerns about the violation of fundamental rights, particularly the Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India. The paper has explored the legal landscape, highlighting the evolution of intermediary guidelines and the constitutional perspective, emphasizing the delicate balance between freedom of expression and the need for reasonable restrictions under Article 19(2). It has also critically examined the regulatory gaps in addressing shadow-banning, pointing out the limitations of the Information Technology Rules, 2021, and the absence of legal recourse for users subjected to such practices.
Furthermore, the research has questioned the legality of shadow-banning when done outside the explicit provisions of the Information Technology Rules, 2021, and the Information Technology Act, 2000. The hypothesis posited that shadowbanning is unlawful due to the vagueness of instances leading to arbitrary content takedowns, creating a significant gap in the protection of Article 19(1)(a) of the Constitution. The paper suggests that the concept of shadow-banning requires more comprehensive regulatory attention, and the existing legal framework needs refinement to ensure the protection of user rights. The role of Grievance Appellate Committees, as mandated by the rules, has also
been scrutinized, emphasizing the need for transparency and independence in their decisionmaking processes. In conclusion, the study underscores the urgency for a nuanced approach to content moderation, one that aligns with constitutional principles, safeguards fundamental rights, and addresses the challenges posed by shadow-banning. As digital spaces continue to shape public discourse, it becomes imperative to strike a balance that preserves the essence of free expression while mitigating the risks of arbitrary and undisclosed content restrictions imposed by social media intermediaries.