 rules 2021. Now history shows that powerful media that is radio, television and internet powered social network have played a dominant role in human behavior and have changed the course of history. At the same time, all these networks have been missiles to the disgusting level. The Reich broadcasting corporation was extensively used for Nazi propaganda to facilitate and to resist the war and genocide during the Second World War. The Rwanda radio station RLTM was used from 8th July 1993 to 30th July 1994 to inside one of the biggest genocides in the history. The Rwanda genocide where 8,800,000 that is 8 lakh people belong to ethnic Tutsi minority were massacred. Al Jazeera network, television network actively associated with Al Qaeda and Osama bin Laden and broadcasted propaganda speeches and videos. The fundamental terrorists had a doubt whether their religion permits a television network. It's interesting to note that a fatwa was used to show that this kind of activity comes electronic jihad and Al Jazeera got the recorded tapes from illegal sources and broadcasted it. Thus, virtually propagating terrorism to the next level. Finally, we have social network which has emerged as the most powerful media today. These two have been missiles to the worst level. While Facebook helped Egypt revolution in 2011 which brought change of regime, the very same Facebook is singularly responsible for the genocide in Miami North from October 2016 to January 2017. The British company Cambridge Analytica in association with Facebook manipulated more than 200 elections worldwide which included India, Pakistan, Thailand, Indonesia, Malaysia, Colombia, Cyprus, Zambia, South Africa, Romania, Italy, Lithuania, Trinidad and Tobago, Nigeria and Argentina. While Nazi, Rwanda and Al Qaeda were based on ideologies completely misguided, they might be. The Cambridge Analytica experiment was a pure fraud on the democracy. Today, we are facing even bigger challenge in the form of fake news. The fake photos, market videos, market photographs that have caused disastrous consequences especially in terms of distress. The next level of social network misuse is the revenge pornography which has to be curtailed at any cost. Time has come to bring regulations in this area and I personally feel that the Union of India has done a wonderful job in this regard. We need an expert view on this to analyze the rules and explain to us in detail. Hence this seminar, I welcome Mr Sajjan Povya, Senior Advocate Supreme Court of India to take over and guide us. Welcome Sajjan. Thank you very much sir. Thank you ladies and gentlemen. Very good evening. I will rather than making this a monologue, I will be very brief in terms of my overall thoughts on the rules that are today enforced and then of course open it up for discussion and if there are any specific questions answer them and in the process of answering the questions, possibly raise further issues in terms of internet regulation in this country, free speech on the one hand and possibly clean governance on the other. In fact, before I start and dwell into the topic I must mention, Mr Baswaraj is very kind to say that I and he were colleagues in Senior Mr Vijay Shankar's chambers. That's not true. I was Mr Baswaraj's junior and therefore he was my chamber senior. I have learned at his feet and consequently I must say my first appearance in the Karnataka High Court was on the day on which I was enrolled as a lawyer in the morning and he dragged me to the Chief Justice of Scott and gave me a brief to argue in the afternoon. So I started with the bank and therefore my father told me that it's disgusting in this profession to start with the bank because you will go blunt very quickly and that's what I think has happened to me. So in that note I must say to Mr Baswaraj that I cherish the memories of having worked under you, not so much with you and learned the law in the chambers of Mr Vijay Shankar and thank you very much. I think you have touched me in many ways and shaped my career. Now coming straight to this topic, I know that a good part of these audience are lawyers and I see some very senior advocates here. I just saw Mr Mohan Kartharaki and the rest of them who are very learned men. I see Mr Puthugia Ramesh etc. people who have had the experience at the bar possibly for the number of years which I have not even lived. Therefore, I will not attempt to in any manner indicate that I am an expert in these areas of the law and try to portray my so-called expertise. I will only raise some issues which are troubling me and possibly raising those issues will ensure that we find the connotation of how these rules must be looked at. As lawyers, we have a tendency of looking at every rule or every legislation with a fine comb and then trying to match the factors that are available in the legislation to the constitutional matrix to see whether the legislation passes muster from a constitutional perspective or not. That's a good thing to do, no doubt. But sometimes I believe when it comes to technology, doing that exercise in vacuum or doing that exercise from an academic perspective really does not yield the right results. If one looks at the present set of rules and I will come to some specifics within the rules a little later. But if one should broadly look at the 2021 rules that is the intermediary and the media code, one would turn up and say that he has broadly speaking, they pass constitutional muster and I don't think there should be a problem and I think therefore Mr. Basaraju is right that on a general reading, one would find that these rules are well considered, they're fairly detailed and they seem to be operable in the present technology matrix and therefore they should be fine to a great extent they are within the four corners of the Information Technology Act. But if you look at it from a different perspective, troubles begin and therefore let me share that perspective. Please see for a minute that in our constitutional governance matrix, what's the first rule? The first rule is it is not the job of the government to keep the citizen under check, it's the other way around, it's the job of the citizen to keep the government under check. Now if it is the job of a citizen to keep the government under check, all methodologies and all tools that are available for such a citizen to check the excesses of the government, whether rightly, wrongly, etc. is a different matter, but all such tools must be made available to that citizen and therefore if you look at a governance matrix which actually aids the citizen to keep the government under check, that governance matrix must be such that the plethora of legislation that are available, whether it is plenary or subordinate in this country, must be such that the citizen is empowered to the hilt within the limits of technology to make sure that he or she raises his or her voice. Now, the next step was this to what it was traditionally when our Constitution was framed or for that matter when even earlier when democracy in terms of constitutional democracy ushered and constitutional law started ushering itself from the United States of America, etc., etc. The scenario was that there were limitations on technology. If one looked at even the last 50 years, media was predominantly state controlled and therefore the amount of investment that was necessary to broadcast information in terms of wireless broadcasts when radio messaging and wireless telegraphy started was so huge that predominantly it was only states which could invest that kind of money and even if private investors could invest and maintain such broadcasting stations, law was brought in to make sure that private interests don't have control over it so that the broadcasting mechanism is used predominantly for state propaganda. Now that was the matrix in which the technology interfaced with the law and therefore a good part of the legislations and rules and regulations that were made were essentially to ensure that the state controlled this matrix of technology because broadcasting was one of the most important aspects and Mr. Baswaraj is absolutely right. He gave some instances where state-sponsored media was used for propaganda. Rightly, wrongly, only history will tell you and it depends on which side of the spectrum you stand but fair enough it was state control. Now look at the second part of it. Over a period of time and if you look at the last 25 years from the 50-year perspective, this state control on media slowly started in some form or the other diluting itself and private interest started controlling media and that is when multiple channels are shared in. For example, in India today, I think we have about 967 active channels which are, as we speak, telecasting news and current affairs in multiple languages with multiple number of subscribers, basis, etc., etc. And therefore whilst terrestrial broadcasting may have its limitations, general broadcasting with aid of technology which is basically at some point of time cable and then internet driven, there are good number of private hands which control such interest. Now even then the state found it convenient to control a specific number of media companies to ensure that only certain aspects of news or media or news coverage or current affairs coverage comes out and slowly and steadily of course the state gave way and made sure that there was more and more private interest and voices that were actually brought to the table. There was still some amount of control. You had to register yourself, you had the threat of actually being blocked in terms of uplinking of data or downlinking of data, your transponders were in some form or the other within state control. There were limitations on in what methodology you will use to uplink news and current effects from the country, should your transponders be located within the country, but then came the last 10 years where from a state controlled media to of course media controlled by a few private hands, it really became a citizen controlled media. A citizen controlled media was assured in simply because we had social media which came into the spectrum. Therefore whilst social media may be good, bad or indifferent, we will deal with it as we go along. The one thing that social media did necessarily is to empower every citizen in this country to become a media boss himself or herself. Today media and dissemination of public information, dissemination of current effects, dissemination of public discourse is in the control of every one of us. A significant social media intermediary whether it is Facebook, whether it is any other platform in Google, whether it is WhatsApp, whether it is Twitter, etc. empowers you and me to make sure that we do the job which the state did 50 years ago or which certain large private interests did 25 years ago. What is the net result? The net result is that in a constitutional spectrum of governance, when a citizen gets empowered to make sure that his or her voice is raised and it is heard by the entire country and possibly the world and by the people who are in power, the matrix of constitutional governance where the citizen keeps the government under check becomes possibly a more reality today than what it was 50 years ago. Now in that spectrum, if you look at what is being done by the government in terms of regulating significant social intermediaries, the entire color changes. I ask myself the question simply as a citizen of this country and as a lawyer, why should the government have a detailed set of rules and regulations which mandate a significant social intermediary? Take Facebook or Twitter for example, why should the government of India have a set of rules which mandate that Twitter must or must not do certain things if it has to actually provide a platform for a citizen of this country to raise a voice against the government? Mind you, being an intermediary under the Information Technology Act, it is not Twitter which is raising its voice against the government. It is not Facebook which is raising its voice against the government. It is the user of Facebook or a user of Twitter who is raising his or her voice against the government. Now that may be of course palatable to the government. It may not be palatable to the government. A government of the day may not like a particular view but the government of another day may embrace that view and therefore the net result is what? That I and US citizens of this country use a platform and a platform which is an international platform potentially controlled from outside the borders of the country, potentially invested from outside the borders of the country, but nonetheless a platform available to you and me which we use to call the government in check, which we use to speak truths to power. Now if that is what it is, shouldn't we as lawyers consider for one minute, keep our political orientations aside, our religious spectrums aside, our likes and dislikes in terms of nature of governance aside. I may like this government, you may hate this government, tomorrow there will be some other government which I may hate and you may like, but if you keep that aside, simply as a citizen, if there is an instrumentality which has come in, which is a private instrumentality possibly funded fully from outside the country, which is making a platform available to me to call truths to power to actually make the government accountable. I asked myself then the question, should it be then available for the government to make sure that there are fetters put in on this system to say, you shall comply with ABCDEF and if you don't comply with ABCDEF, I will not permit you to operate in this country. From that spectrum, I believe that these rules are really questionable. First, for those of you who are not very, very familiar with the Information Technology Act and the rules, I will in five minutes provide the background. Today, social media intermediaries are of course known. General intermediaries who are not social media intermediaries are also known, which are knowledge based intermediaries. For example, let's take Google. Google search is not a significant social media intermediary because Google search is not a social media intermediary at all. Google search is simply an intermediary which provides knowledge available access and therefore makes sure that the multitude of knowledge basis that are available are indexed and provided to you. Simply put, it is an indexing platform. It is quick. It is reliable, but it is certainly not a social media intermediary. It does not really lead to one-to-one connection in terms of interaction between individuals, etc. It is simply you pulled on content. At the same time, a Facebook or a Twitter becomes social media intermediaries. What's the legal matrix today? The legal matrix until the Information Technology Act came in was nothing. Nothing at all. Anybody could start internet intermediary. They would have a platform that platform could be used for anything. It could be used for chatting. It could be used for group discussions. It could be used simply to upload pictures. We had Web 1, Web 2 and Web that's Web 1.0, Web 2.0, now Web 3.0. Possibly say we have gone on to Web 4.0. What was Web 1.0? Broadly, very colloquially, not technically. Web 1.2 was simply a static internet. Most of us remember when we were possibly young in this profession. We had simply a TCPIP account and a scenario where we could simply upload a particular email and it would go and reach somebody else. We had no clue what that person would do, whether he read it, didn't read it, etc. We had banner advertisements where when you open the internet, you will find a banner advertisement on top and those banner advertisements on top of the screen was most expensive. Bottom of the screen was less expensive, etc. They were simply static. There was information upload or information download with no interrelation between the two parties, no communication real time between the parties. But it came to Web 2.0 where it became a very dynamic internet in terms of still only internet of information. Still not the internet of things and they are two very very different aspects. It was still an internet of information, but it became dynamic in the sense that there was interaction between one to one and one to many and therefore you could on a real time basis converse make sure that it became a market space of ideas, so to speak. Then came Web 3.0 just on the information spectrum, not on the internet of things spectrum. Web 3.0 is that it was not just that I would converse with you or I would converse with all of you and all of you would converse with me at the same time in terms of interaction and interrelation of ideas, but it also came in that there was a level and a greater degree of level as we go along, but there was a level of artificial intelligence which came into the internet and therefore you necessarily need not be conversing with another human being. You will actually be conversing with the database, that database which is actually using technology to interact with you and share those ideas with you and possibly increase the level of the discourse to a particular height. So, instead of the discourse really being a discourse as the United States Supreme Court said, instead of a discourse reaching the sandbox, that is the sandbox in which a little child plays, the discourse was brought to a level where it reached the mailbox, that is a discourse was between two adults or between two knowledge individuals as compared to simply giving a propaganda to the so-called non-intelligencia in a particular jurisdiction saying this is what I am giving you on a platter. But when artificial intelligence comes in, big data comes in, etc., etc., in a web three-point or scenario, you have multitude of other legal issues. Does our legislation today in any manner even remotely govern it? Answer is no. I don't think our lawmakers even understand the ramifications of artificial intelligence in a knowledge based internet and that artificial intelligence raising the level of discourse to a particular level, particular threshold. That level of discourse may be left of center, right of center, center, we don't know. We don't know whether it is people driving that to a particular spectrum in terms of left, right and center or is it just bots. Now, does the law govern it? Does the law have the capacity to govern it? Answer simply is no. But let's come back to web 2.1, simple interaction. Add to this mix another scenario called the Internet of Things where internet is not just about information that is my information uploaded, your information uploaded, our information interacting, people interacting with it and therefore it becoming a marketplace of ideas. If you add the Internet of Things, it becomes a scenario where my car is conversing with your house. Your house is conversing with somebody else's car. When I am driving in my car and I am going by your house, my car converses with your house to indicate that this is your friend so and so, this is the car, you recognize this car, I am letting you know that I am coming close by. So if you really want to do something, go ahead and do it. In simple words, if it is on my car and my house, it's simply the fact that my car converses with my house independent of me and tells my house that the car is of course one kilometer away and therefore the house may have to switch on its heating elements or cooling elements so that the house is at a particular temperature when the car reaches the house or my refrigerator speaking to Amazon maybe or speaking to any online grocer and telling the online grocer that eggs and beans have actually gone down on the fridges space and therefore they may have to be fresh supplies brought in, where there is interaction just between two apparatus with no human intervention. Now, how do you govern those aspects? How do you govern the interaction between my refrigerator and possibly the central database of Food Hall or Amazon where certain aspects are ordered? How do you deal with the fact that my car is interacting with your car and indicating that we are actually passing each other at a particular speed and you may or may not want to do certain things or my house speaking to my car and saying that my AC will be on or my water heating element will be off even worse what if my car speaks to your house and lets your spouse know that I am going by? Now, these are of course confusing issues. Now, the law does not touch upon any one of these. The law which was made in 2000 and then particularly the internet intermediary safe harbor which came in 2009 in my humble view is absolutely archaic in 2021. In 2009, there was a safe harbor principle which came in. What is the safe harbor principle? The safe harbor principle simply said that we are, of course, as India, we are a very sound legal jurisdiction. We are not one of those Banana Republic legal jurisdictions where our legislations don't have the correct matrix in terms of constitutional master. We apply our legislations in a particular manner which most developed jurisdictions envy in the manner that we lawyers think. The way I think a constitutional lawyer thinks in this country is the envy of many lawyers in the best. Now, therefore, from that perspective, just see what the law does. The law simply said, if you are an internet intermediary and if you are an intermediary who does not do three things, that is, you are not the person who is the originator of the content. That is, the genesis of the content is not from you. Number one, number two, you are not choosing the recipient of this content. That is, you are not choosing who should look at it or who should read it. Third, you are not in any manner modifying the content of the communication. Take, for example, Twitter. Twitter has a platform that is not the originator of the content. It is Mr. Basavaraj tweeting. Therefore, the content which is being tweeted is belonging to Mr. Basavaraj not belonging to Twitter. And therefore, Twitter is not really the genesis of this content. Second, Twitter does not decide who should read Basavaraj's tweet. His followers will read it. And if it's an open tweet, everybody will read it. Somebody will not read it. If somebody has blocked him, they will never read it. Therefore, the genesis is not from Twitter. The recipient is not controlled by Twitter. And Twitter does not edit the contents of that tweet. Mr. Basavaraj may call me names and tweet. But so long as Twitter does not interfere and say, don't call Sajenpawaya names. He is my lawyer. Therefore, I want to be nice to him. So long as they don't interfere and modify that content, they remain an independent platform. A platform which provides the tools for the user to use and broadcast certain message or put certain messages on the internet for others to see, view, comment, etc., etc. Web 2.0 interrelation, you will see, you will comment, you will criticize, you will troll, whatever you will do. Therefore, it is akin to a platform giving you paper and a pen. They just give you the tools for you to write. You write a message on that paper. They'll give you the tools for that paper to actually go and get visible to everybody. So if a platform gives you the tools and remains independent, the law said initially in 2000 and they modified it and polished it in 2009 when the section 79 amendment came in. The law simply said, if you are an independent platform, you are not the originator of the genesis of the content. You are not controlling the content. You are not controlling the recipient as to who should get this content. You will be given a safe harbor in the sense that you can park your ship, the intermediary ship in a safe harbor of the law where you will not be held responsible for the contents that are available on your platform. In other words, you don't become accused number two in a scenario where there is a criminal action for defamation, simply because the content is available on your platform or simply because the accused has used your platform to disseminate such content or dissipate this information, whatever that be. Now that safe harbor worked well. There was no problem about it. And let's not kid ourselves. The rules that are today being discussed and debated, etc. across the globe are not really rules which are bringing about some legal metrics for the first time, not at all. When the 2009 amendment to section 79 was brought into force, by 2011, there were a set of rules. From 2009 itself, there were a set of rules. For example, the blocking rules came up in 2009. The intermediary guidelines rule came up in 2011. So in that period of three years, 9, 10, 11, there were a series of rules that were made as subordinate legislative actions, which said what? Which said that as an intermediary for you to get the benefit of the safe harbor, you have to maintain certain minimum thresholds of due diligence. That is, despite it being excessively illegal, for example, child pornography, for the naked eye without anybody applying their mind, without an adjudication on whether it is pornographic or not. Let's take an example, child pornography on one hand and Italian figurine, etc., which is in the nude on the other hand. Now, the Italian figurine, whether it is pornographic or not, pornographic may be a debate and an adjudication that is necessary from a legal mind to say whether it is pornographic, whether it falls within the definition, so to speak. But child pornography excessively is. Now what happens when such content is available on the platform? Should there be some thresholds of regulation, which are base regulations, which are basically due diligence that you should do to provide such a platform? If you don't do those due diligence, should you still have the benefit of a Section 79 safe harbor? The rules therefore in 2011 brought in a basic level of threshold, saying these are guidelines which every intermediary should follow. Go ahead and follow those guidelines. So long as you follow those guidelines, you will be within the safe harbor of Section 79 and somebody should show that you have not followed those guidelines, you have not exercised due diligence, only then can you be brought out of the safe harbor. Now, before I come to the 2021 rules, let's even criticize it or accept it as it is either way. But please see what is the net result. The net result is there is a Section 79 safe harbor. All these just visualize that all these intermediaries, whether it is significant or insignificant social media intermediaries or simple internet intermediaries such as Google search, they are all ships which have gone and anchored themselves in this harbor and provided themselves a safe harbor where there are no legal actions brought against them in a particular jurisdiction that called India. If they don't comply with the law or if they don't comply with the regulations that is the subordinate legislative instrument, the 2011 guidelines, then what would happen is the law would remove this protection of a safe harbor or simply in other words, remove that ship and put it in the high seas saying you do not have any legal protection. But what's the net result? The net result does not mean they are automatically punished. It only means that they get into the general legal matrix where they don't have a special protection, which means a person or a state which wants to prosecute them should then prosecute them, should all bring all other evidentiary values to bear to support their prosecution and show that they have indeed committed a illegality and therefore they should face a penalty. That is even without a safe harbor. An internet intermediary will have all defenses available to it, for example, in a criminal prosecution. It will have all defenses available to it that are available in general criminal law in this country. There is no special scenario saying that, oh, you are an internet intermediary, you have not followed these guidelines, you have not followed due diligence, therefore what? Therefore, you have to be banned or you have to be prevented from operating, not at all. In fact, they are put on a higher pedestal of being given a protection. That layer of protection or that one peel of the onion is gone. They will then be like any other entity which is actually disseminating information in this country. It can simply be a desktop publication from Sajjan Puvaya, who's instead of creating a blog on a Google platform. I have my own website. I will just put up my blog or my write-up on my website. What happens in traditional law? Let us assume that Mr. Basavaraj has a website. I'm not even talking of Daksha. He has sbasavaraj.com. He writes something about me, something defamatory about me. He puts it up on his sbasavaraj.com, not on a Google platform, not on Facebook. He does not tweet about it on Twitter, nothing at all. When he puts it up on his website, which he has administrative control over, he has editorial control over and it is his private domain, but it is available to the public to view because he has not blocked access. Then the necessity is what? In law, he is actually the author of that content and he is the publisher of that content. Therefore, a publisher and author fuse into one when it comes to desktop publishing or internet publishing, which you do. Now, simply because he does not use his own platform or his own domain name and he instead of that puts this content, let us say on Facebook or on a blog spot on a Google platform. Does that automatically mean that that intermediary which provides him that platform becomes liable? Answer is no. Even assuming that internet intermediary does not have the protection of Section 79 and say Farber, that intermediary still is not responsible because under common law that intermediary does not even become a publisher because you have published that content by putting it on a public platform and the uploading of the content was within your control. The content was generated by you. That platform does not choose who should put the content. That platform does not choose what the content should be and that platform does not choose who should read the content. Therefore, the traditional notions of publisher in common law is not even met. Now, if that is the matrix, if an internet intermediary which provides the tools for a citizen to publish his or her views does not even become a publisher under common law and is therefore not liable for the content available on its platform. I asked myself, how are you then turning up and making a set of grandiose rules and saying that if you don't comply with these rules, I will hold you responsible. Now, please come to the new rules. The new rules, of course, in the letter and spirit, there is no problem about it. What does the rule say? The rule says pretty much what the 2000, that is the 2021 rules as regards internet intermediaries. I'm not coming to digital media as such. Because digital media possibly will be a different and independent debate. It may take another hour for it. I'm happy to come back and debate that with you. But on internet intermediaries alone, if you look at the 2011 rules and the 2021 rules, the 2021 rules is not really significantly different from the 2011 rules except on some aspects. One and the most important is the government realized or for example, the so-called ruling dispensation as it came, whether it is whichever party does not matter, the people who govern, I think all people who govern have the same feather, whichever political party they may belong to. Ultimately, once they get into the governance mechanism, they have the same feather. They rule and there is a rule. Therefore, they will try to do whatever best they can do to clamp down on public information and the citizen will do whatever best to of course criticize the one certain power. That power struggle will continue and more so in a information-driven society. Now, what was the attempt? The attempt was that we tried in 2011 to bring a set of benchmarks. Those benchmarks don't seem to be empowering the state so much to control these intermediaries. These intermediaries has gone on and they are doing what they are. When the Congress was in power, they had problem with the intermediaries criticizing users on intermediary platforms criticizing Congress. If BJP is in power, BJP will have problem with intermediaries, users of intermediaries criticizing BJP. If Indian Union, Muslim League or left parties in power in a state, they will have problem. I don't see a single state government, whether it is Trinamul, BJP, Congress, Indian Union, Muslim League, Left Democratic Front, whichever does not matter. I have not found a single state government in the country till date which says, I welcome the fact that these intermediaries are providing a platform to citizens. They can say what they want. I will meet it, not at all. Every state has prosecuted people who have used social media intermediaries to comment on the governance spectrum. There are multiple actions. We know Shreya Singhal of course at some ultimately stuck down 66A but that does not mean other prosecutions don't like. Everybody has done the same thing. Now, in that light, I think the people who govern realized that simply having a set of rules is not helping control these social media intermediaries. Why? For one obvious non-legal reason, not a legal reason. The obvious non-legal reason is most large social media intermediaries are controlled from possibly a different country. First, second, most large social media intermediaries have a single platform for the entire world. They do not have a different platform for India, a different platform for Pakistan, a different platform for Korea, a different platform for the Middle East, a different platform for US or the UK or Ireland as the case may be. Twitter, for example, has a single platform which is a worldwide platform. That platform must pass muster of the law whether it is in any state within the United States of America, whether it is in UK, whether it is in Ireland, whether it is in the Middle East, whether it is in India, whether it is in Thailand, whether it is in Japan or Australia. It is one platform. Now, if that be the case and that platform is controlled, let us say, for example, from the United States of America, I ask myself the question sitting within the governance spectrum in India. How is my writ there lying? How can I as a person in governance ever hope to control the social media intermediary, not so much to control and muzzle them down, not at all. I am not being critical about the government. I don't think any democratically elected government will muzzle down a social media intermediary, not at all. But in just in terms of how do I control what is happening on that intermediary, if that is not palatable to me, I may make a rule. But what if that rule is not followed? If there is a rule saying that defamatory content should not be tweeted hypothetically and defamatory content is tweeted. Twitter is controlled out of the United States of America. Twitter Inc is located there. Twitter is a global platform, worldwide single platform. You issue notice to Twitter and say, no, no, this is defamatory. This is defamatory against the most prominent political leader of the day. Therefore, take it down. The user says, no, no, no, this is not defamatory. I can justify that this is absolutely true. Twitter says, I am not involved in this dispute of whether it is defamatory or not. Go get a court order. I will take it down. The government of the day says, no, no, no, these are per se defamatory. I will not get a court order. You have to comply with my direction. A direction, for example, very recently we saw whether a particular tweet is correct, not correct, whether it is manipulated, not manipulated, all these issues came up. Government says, remove the manipulated tag. Twitter says, the user says, no, no, no, it is manipulated. Therefore, I have given you notice and Twitter says, I am not going to remove anything. Go get a court order. In such a situation, if the platform is controlled completely from outside the country, the level of control that the political establishment or the governance system can play or impose on a social media intermediary is negligible. Therefore, the change, the predominant change that has come and I said it is really a non-legal weapon rather than the legal weapon. I am not saying that it is an illegal weapon. It is possibly an extra legal structure is that today, India is one of the few countries which mandates that a significant social media intermediary, every other intermediary is significant today. Significant is that if you have more than 50 lakh users, no, India has 120 crore people, 50 lakh users, I can't think of any social media intermediary which does not have 50 lakh users here. I am sorry, 5 lakh users. That is, no, 5 million is 50 lakh users. Sorry about this number, 50 lakh users. Now, they say, the government says that if you have 50 lakh users in this country, you have to ensure that you will have in this country, resident in this country, located in flesh and blood in this country, a compliance officer, a nodal officer and a grievance redressal officer. In other words, you are now expecting a social media intermediary who has its life and genesis on the internet, which is a disembodied entity, which is operating pan countries across multiple jurisdictions as a single platform. You are now expecting them to have human beings available in this country, so that those human beings become the interface between the government and the intermediary to ensure that the directions given by the government or orders given by the government are complied. Now, what happens if it is not complied? Traditionally, before these rules came in, a significant social intermediary would have said, sorry, I am pushing back. Forget India. India is a very mature legal jurisdiction. If you look at an example from India, you may not get the best example. So, I will give you a very extreme example. Look at Egypt. When the Arab uprising occurred, etc., the people that were in power in Egypt did everything to ensure that public opinion did not come out. Therefore, look at a hypothetical situation where the people in power, the governance in power or the flesh and blood who are governing Egypt issue a direction to a social media intermediary saying, you will take down the following contents. The social media intermediary says, I am a free speech platform. Sajjan Pohai and Baswar Raj have said what they have said on the platform. I am not going to remove it. Go get a court order. Now, traditionally, the Egyptian government could do nothing to remove this content out because there was no flesh and blood from Facebook or Twitter or Google sitting in Egypt so that they could clamp them, arrest them and say, now you comply. No flesh and blood available there. Platform is controlled out of a different jurisdiction. I have issued directions. Directions are not followed. In the largest spectrum, did it help in terms of bringing in, ushering in democracy in the Middle East, etc., answer is yes. But in the immediate spectrum as lawyers, was there a direction from the government in power? Answer is yes. Was the direction followed? No. Therefore, what happens? There is no safe harbor there. Intermediary should be prosecuted. But to prosecute an intermediary, what should you do? You should initiate criminal action. Now, look at India. Let's assume you initiate criminal action in India. Under section 105, what should you do to issue notice? You will have to follow the MLAD process. That is a mutual legal assistance treaty process and serve process in the United States of America to continue prosecution in India. Now, that process serving itself will take three months. In the meanwhile, this content is available on the internet platform, which is not palatable to the government of the day. Obviously, therefore, what do you want? You want a set of rules which will provide you a mechanism where you can enforce removal. Again, pardon me. Don't get me wrong. I'm not in favor or against any government. I'm simply looking at it in abstract. If a government wants to remove particular content from significant social intermediaries platform, they issue a direction to pull down that content. The platform says, no, I believe it is not violating any law. I will not pull it down until the court decides one way or the other. Traditionally, the government could do nothing. But with the new law, the new rules that have come into force, this intermediary will have in India a resident chief compliance officer, a resident grievance officer, and a resident noddle person. What can the government do? Government can simply clamp down and tell this chief compliance officer, I have given you a direction. That direction is in accordance with section so and so of so and so statute. You are not complying. The intermediary does not comply. You are the chief compliance officer here. Therefore, I will now use state power to ensure that your liberty is curtailed so that you will make sure that the platform complies with it. In other colloquial words, I will threaten that I will arrest the chief compliance officer if the intermediary does not comply. Now, what is the net result? Most intermediaries will comply because they don't want their chief compliance officer going to jail here. Net result is what? Maybe the state is all correct and the intermediary is all wrong or the user who is actually putting up on the intermediary is all rubbish. That is irrelevant. The net result is a platform that was available for speech, speech and dissemination of ideas actually gets curtailed or chilled. Chilling effect on free speech, according to me, is a result not because the law is any manner badly drafted, etc. Chilling effect on free speech is possibly, I can't say is a necessary result, is possibly a sequester which will follow because the present set of rules for the first time prescribe and require a set of physical people to be available in this country to enforce the directions that the state will issue to them. That my friends, ladies and gentlemen, is the biggest problem when it comes to significant social intermediaries and the governance here. It's not that the traditional law did not have mechanisms for it. You had Section 69A always in the Information Technology Act. Section 69A provides methodology by which you can block certain content that is available on an intermediary but there were protections. How could you block it? You could block it under the blocking order by issuing an order. That order was subject to a review committee supervisor but that order could only be on certain Article 19-2 thresholds. That is, if the content was against the sovereignty and integrity of India, it was against friendly relationship or defamation being one of the contents, etc. Within 19-2 buckets, that is reasonable restrictions that were available within the constitutional matrix for free speech were the same standards that were applied under Section 69 by virtue of the wording of the statute to block content available on the internet. Now, as a technology lawyer, I can't for the love of me think that there will be any intermediary which having their principal officers in this country will push back as hard as they would push back otherwise in terms of complying or not complying with a governmental order. Now, let me come to the flip side. Yes, we are a proud country. I believe that if as a country, if there is a direction from the government, every entity operating within the matrix of the law in this country should comply, what would you do if that entity does not comply? In the traditional sense of the word, if you issued a direction to a particular company in terms of doing or not doing, let's say under the because of the pandemic under the National Disaster Management Act, there is a direction issued for a physical brick-and-mortar company generating oxygen to saying that you will actually provide this oxygen to XYZ, supplies by virtue of this by virtue of this order under the National Disaster Management Act or under the pandemic act whatever it is. Assume that there is a legislation empowering such an action and order is made. The brick-and-mortar company does not comply. What would you do? You would then simply prosecute that brick-and-mortar company and make sure that the brick-and-mortar company is made liable either for the penalties which is in the statute or otherwise has the case may be. Do that with an intermediary. Why would you provide another weapon or another stick in the hands of the government to make sure that not only if you don't comply, I will prosecute you. Fair enough, the intermediary will say prosecute me. I will face prosecution but no, I will not only prosecute you that's later on but I will today ensure that my orders are complied. Why? If you don't comply, you may be in the United States of America, you may be on the internet, you may be providing a free platform, you are not saying anything, may be the user who I don't like is saying something on your platform but I have your chief compliance officer here. I will strangle him, I will make sure that there is a threat of arrest for that officer, you will comply. That I believe from a governance spectrum, from a legal spectrum and from a traditional, from a harmonized international spectrum, if you make sure that these social media intermediaries which operate a single platform all over the world have to provide officers within your country so that those officers become the compliance mechanism between the state and this platform, you necessarily will bring a chilling effect. The second argument which I always have on these aspects is there is a disproportionality issue here. Where is the proportionality? If you are by a subordinate legislation making a specific mandate that you will hire people and keep them resident in my jurisdiction so that they follow my directions and if they don't follow my directions, they will have the threat of legal precipitation against them. When the plenary legislation or the primary law which is the Information Technology Act requires no such thing. The Information Technology Act of 2000 after the amendments in 2009 does not have a matrix where there must be a physical presence or even a physical registration for a social media intermediary to operate in this country. A Twitter to operate in this jurisdiction need not even register itself in this country. It need not have an internet subsidiary in this country. It need not have people in this country. It need not have a single fresh and blood individual in this country. It does not even require a registration in this country but it is entitled to operate in this country and I believe it is entitled to operate constitutionally not because Twitter has an article 191 a right or an article 191 g right not at all because Twitter provides a platform which is for exercise of a 191 a right of an Indian citizen who uses Twitter. Therefore, an intermediary is just an abstract. You don't really shoot the intermediary because you want to control data. That is my biggest grievance. I will end with one other example. I am sure all of you who have been looking at these aspects have looked at multiple news back, forth, saying Google complied, Facebook is not complying or it will comply, WhatsApp is not complying with certain financial mandates which the Reserve Bank is doing may comply. Litigation's galore particularly been the Delhi High Court and the Supreme Court. My very learned friends and seniors who practice in that part of the country will know every day there is one or the other litigation on intermediaries generally and on social media intermediaries particularly. Now in this entire scenario, please see what is missing. Everybody talks about Facebook. Everybody talks about Twitter. Why? Because Facebook and Twitter are used as platforms to speak troops to power, to actually call the government to account, for somebody to say this is good or that is bad. They may be right, they may be wrong. That's a different matter. But those platforms are used to actually criticize the government. But illegality also happens in another platform. Look at Reddit. I don't know how many of you are very familiar with Reddit as a platform. Most people who operate in the internet domain know Reddit as a platform. Reddit is an extremely successful platform. Reddit is not small. Reddit is today in some verticals, it's looked at as the friend page of the internet because memes etc, which come out on Facebook and WhatsApp tomorrow are actually on Reddit today. They generate in Reddit and then move to other platforms. Reddit is not small. Reddit has 43 crore or 45 crore active monthly users on its platform. Reddit in 2020 had about 30 crore new posts coming onto it on an annual basis, new posts. Reddit operates in some very, very controversial areas too. Pornography being one. But Reddit, for example, there is a space called ELI-5 that is explained like IM-5, any aspect, a constitutional matrix of fundamental rights. Reddit will have a group or a subgroup where that is explained as if a five-year-old will understand, explained as if IM-5. There is another group on Reddit, a platform on Reddit saying AMA, ask me anything. Now, in that ask me anything platform, certain very controversial aspects are of course asked, answered, etc. Now, does Reddit have a base in India? Answer is no. Does Reddit have, is it a significant social mentality? I would assume the answer is yes. I don't have data on that. But I would assume it is a matter of 50 lakh people in the country. I'm assuming that it is a significant social media intermediary. Now, is Reddit appointing anybody here, till date, at least in public domain information, I'm not seeing that Reddit is appointing a compliance officer or a grievance officer. If a direction is issued to Reddit to pull down certain content, it does not do. Or it does not appoint any of these officers. Let's take the extreme. It says to hell with it, you have the rule, I will not appoint. What will the government of India do? I ask myself, what can it do? It can at best tell Reddit that okay, you don't have a safe harbor under section 79. You therefore don't have the protection of an intermediary. If something happens on your platform, I will prosecute you. If Reddit has a platform says, okay, if you want to prosecute me, prosecute me, but you are a mature legal jurisdiction. I have defenses under criminal law. I will take my defense. I will face prosecution. There is no problem. Nobody is telling me, Sajin Pohai, that you shall not do certain things. It only tells me that Sajin Pohai, if you do certain things, I will prosecute you. I may be willing to face that prosecution and I may even win. I may have, I may be acquitted honorably. Therefore, it is one thing to say I have a set of rules and these intermediaries are not complying. But it's totally another thing to say that these intermediaries need not comply with any one of these rules to operate in the country, not because they are supernatural or not because they are international, not at all. Simply because the law in this country does not require them to comply as a precondition to operate in this country. The law in our country today is that you can operate as an intermediary in this country irrespective of whether you have complied with the section 79 mandates or the 2021 rules in total. You may be in complete breach of the rules, but you still can operate in this country except that if you don't comply with the 2021 rules, you don't have that added layer of protection as an intermediary. Therefore, you may be liable for prosecution. That is all it is. Therefore, friends, I will stop with this, this last comment. When we see in the general print media or electronic media in terms of TV debates, saying, oh, Government of India will ban Twitter. Today will be the last day you will be tweeting. Tomorrow you may not have Twitter. I've seen a lot of tweets coming to me, et cetera, saying, oh, we have to move to Ku, we have to move to X, we have to move to Y. Oh, WhatsApp will be banned. We have to move to Signal. Signal will be banned. We have to move to something else, which is absolutely in my view, if I can use the word, it is Hamba. The government of this country and the democratically elected government's country, whatever they do within the kernels of the law, they will do nothing to ban any of these intermediaries because in my view, they have no power under the existing legal matrix to ban any of these intermediaries except if under section 69A, et cetera, they have those those eight baskets of 19 to any ground available. Even there, what they can do is they can block certain content available on the intermediary and not actually ban the intermediary. There is no question. Therefore, I think the time is now ripe for another Shreya single moment. When the Shreya single debate really reached the Supreme Court and when Justice Chalameshwar and Justice Nariman rendered decision of Shreya single in 2015, calling for how any regulation which is disproportionate or vague, not just disproportionate, even when a regulation is vague, they said even void for vagueness was the doctrine that they used, that a vague regulation or a disproportionate resolution will have chilling effect on free speech and it is important to protect free speech and therefore protect all instrumentalities that provide the platform for free speech. And that moment, that ushering moment of 2015 in Shreya single, I think it's now in order that we should have the second ushering moment of Shreya single when it comes to the existing now the new rules, the 2021 rules. Yes, it's a matter of time. There are multiple litigations. Live law for example has obtained certain interim protections from the Kerala High Court. There are multiple petitions filed in the Delhi High Court. Some of them, I must say most of them challenge part three of these rules which are applicable to digital media. Only few of them challenge part two or portions of part two of the rules which are applicable to internet intermediaries and significant social intermediaries, both significant and non-significant. But it is a matter of time. I think although it may take a few months, years, I don't know that we will reach a moment where the courts in this country will look at this regulation, this rule in our guideline in a particular form and see whether it even indirectly has a chilling effect on free speech, whether it is vague, whether it is disproportionate. And if you were to ask me not being a soothsayer, I would think some aspects of this in terms of at least requiring physical presence of people for a social media intermediary to operate in this country may actually fall on the ground of disproportionate requirements. That is the long and short of what I wanted to share with you. I'll be very, very happy if any one of you have questions to take those questions, answer them.