Introduction
On 25th February 2021, the Government of India issued a notification introducing new social media intermediary rules called the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 under the Information Technology Act, 2000.[1] These rules sparked widespread debate on the right to privacy of Indian citizens and generated significant public criticism. While controversial, these rules exist and, like every coin, have both advantages and disadvantages.
Social Media Intermediary – Defined
The rules define a social media intermediary as a mediator between two or more clients that allows them to connect and use the platform to share, upload, create, modify, or access information over the internet. A significant social media intermediary is one with more than 50 million registered users in India.
Guidelines as Specified by the Rules – A Summary
Due Diligence on Part of the Social Media Intermediary
- Intermediaries must publish their rules, privacy policy, and user agreement on websites and mobile applications. Users should be notified to avoid sharing controversial content such as obscene, pedophilic, defamatory, or third-party information.
- Intermediaries must periodically inform users of updates to rules, policies, and the consequences of non-compliance, including possible termination of accounts.
- Intermediaries are prohibited from hosting, storing, or publishing unlawful content. User information must be retained for 180 days even if a user cancels their registration.
- Intermediaries must furnish information to the government within 72 hours of inquiry and report cybersecurity incidents to the Indian Computer Emergency Response Team (CERT-In) as per the IT Rules, 2013. Platforms must not alter their normal operations.
Grievance Redressal Mechanism
- Intermediaries must appoint a Chief Compliance Officer responsible for rule compliance and coordination with law enforcement.
- Intermediaries must appoint a Resident Grievance Officer to address complaints within 15 days and provide their contact details on websites and apps.
- Access to content showing nudity or sexual acts must be disabled within 24 hours of receiving a complaint.
- Messaging platforms must enable identification of the first originator of a message and verify users, displaying verification marks.
Consequences of Non-Compliance
Social media intermediaries traditionally operate under Section 79 of the Information Technology Act, 2000, which provides immunity for third-party content.[4] The new rules make this immunity conditional. Failure to comply could result in intermediaries being held personally liable for content shared on their platforms.
Analysis of the Rules
The Government’s Perspective
The government aims to track false information, hate speech, rumors, and content capable of inciting violence or public unrest. It seeks to prevent riots, terrorist threats, and safeguard vulnerable groups like children and tribal communities by regulating online content.
The Social Media Intermediary’s Perspective
Social media platforms have raised concerns about privacy violations. WhatsApp, for instance, relies on end-to-end encryption, and breaking this feature for compliance could undermine its core functionality. Intermediaries also face high compliance costs and risk losing legal immunity under Section 79. They lack recourse if they disagree with government directives.
The Citizens’ Perspective
Citizens are concerned about fundamental rights violations, including privacy and freedom of speech. The rules appear arbitrary and may enable citizen profiling, potentially influencing political preferences through targeted content. Additionally, these rules were implemented without parliamentary approval, raising further concerns.[5]
Solutions – A Middle Ground
Despite controversy, the rules can be beneficial if implemented responsibly within constitutional boundaries. Suggestions include:
- Establish a tribunal with jurisdiction to oversee implementation and ensure the executive does not overreach.
- Allow users control over shared content, enabling self-regulation within 24 hours with warnings for repeated violations.
- Introduce a comprehensive data protection law in India, such as passing the Data Protection Bill, 2019, with stakeholder consultation.
Conclusion
The Social Media Intermediaries Rules aim to manage security threats and protect vulnerable groups. However, the government must consider perspectives of intermediaries and citizens to ensure privacy, freedom of expression, and ease of business are maintained. A balanced approach is necessary for proper implementation.
End-Notes:
- Ashima Obhan & Shivam Patanjali, India Tightens the Noose on Intermediaries and Social Media Platforms Part-2, Obhan & Associates, (Feb 19, 2022 1:54 AM), https://www.obhanandassociates.com/blog/india-tightens-the-noose-on-intermediaries-and-social-media-platforms-part-2/
- Bhumika Indulia, Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, SCC Online Blog, (Feb 20, 2022 1:36 AM), https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/
- Bhumika Indulia, Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, SCC Online Blog, (Feb 20, 2022 1:36 AM), https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/
- Information Technology Act, 2000 § 79, No. 21, Acts of Parliament, 2000 (India)
- The Big Picture: Social Media- New Rules & Implications, DRISHTI IAS, (Feb 21, 2022 1:22 PM), https://www.drishtiias.com/loksabha-rajyasabha-discussions/the-big-picture-social-media-new-rules-implications
References:
- Aashish Aryan, Explained: Social Media and Safe Harbor, THE INDIAN EXPRESS, (Feb 23, 2022, 5:11 PM), https://indianexpress.com/article/explained/intermediary-guidelines-digital-media-ethics-code-facebook-twitter-instagram-7331820/
- Ashima Obhan & Shivam Patanjali, India Tightens the Noose on Intermediaries and Social Media Platforms Part-2, OBHAN & ASSOCIATES, (Feb 23, 2022, 5:23 PM), https://www.obhanandassociates.com/blog/india-tightens-the-noose-on-intermediaries-and-social-media-platforms-part-2/
- Bhumika Indulia, Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, SCC ONLINE BLOG, (Feb 23, 2022, 5:24 PM), https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/
- New Intermediary Rules: What Social Media Giants Stand to Lose, and Why you should be Worried, THE ECONOMIC TIMES, (Feb 23, 2022, 5:25 PM), https://economictimes.indiatimes.com/news/et-explains/intermediary-tag-what-social-media-giants-stand-to-lose-and-why-you-should-be-worried/articleshow/82943504.cms
- Malavika Raghavan, India’s New Intermediary and Digital Media Rules: Expanding the Boundaries of Executive Power in Digital Regulation, FUTURE OF PRIVACY FORUM, (Feb 23, 2022, 5:26 PM), https://fpf.org/blog/indias-new-intermediary-digital-media-rules-expanding-the-boundaries-of-executive-power-in-digital-regulation/
