New social media rules: What will happen if intermediaries fail to comply?
In case, the social media platforms and the digital content media outlets fail to comply with the new rules, the indemnity provided to the social media intermediaries under Section 79 will be taken away. What is Section 79 and how it protects the intermediaries?
The new rules for the social media platforms and the digital media outlets in India, known as the Intermediary Guidelines and Digital Media Ethics Code, have come into effect from May 26, 2021.
On the other hand, the social media intermediaries have continued to oppose the guidelines, maintaining that it will breach the freedom and privacy of the users on these platforms.
As the tension continues to grow between the social media giants such as Twitter, Facebook, Instagram, and the Government of India, a recent lawsuit by WhatsApp against the government has aggravated the situation more.
Read more to know more about the guidelines and what will happen if the intermediaries fail to comply with them.
What are the guidelines for social media platforms?
The guidelines were announced by the Indian Government in February 2021.
• Under the guidelines, the Central Government has asked all the social media platforms to establish a grievances redressal and compliance mechanism, which will include appointing a resident grievance officer, a nodal contact person, and a chief compliance officer.
• The Electronics and Informational Technology Ministry has also asked the social media platforms to submit monthly reports on the complaints received from the users and actions taken.
• The third requirement, under guidelines, was for the instant messaging apps to make provisions for tracking the first originator of a message.
What will happen if these platforms fail to comply with guidelines?
In case, the social media platforms and the digital content media outlets fail to comply with any of the mentioned requirements, the indemnity provided to the social media intermediaries under the Section 79 of the Information Technology Act will be taken away.
What is Section 79 of the Information Technology Act?
As per Section 79 of the IT Act, any intermediary will not be held legally or otherwise liable for any third-party information, communication, or data link made available or hosted on its platform.
The Act says that the protection will be applicable if the said intermediary does not in any way, initiate the transmission of the message in question, does not modify any information contained in the transmission, or select the receiver of the transmitted message.
However, the protection accorded under Section 79 will not be granted in case the intermediary, despite being notified or informed by the government or its agencies does not immediately disable access to the material under question.
The intermediary should not tamper with any evidence of these content or messages present on its platform, failing which it will lose its protection under the Act.
Why the provision for the protection of intermediaries was introduced?
The need to provide protection to the intermediaries from the actions of the third party came into focus after a police case in 2004.
An IIT student, in November 2004, had posted an obscene video clip for sale on bazee.com, which is an auction website. The Crime Branch of Delhi Police, along with the student, also arrested the then Chief Executive Officer of the website, Avnish Bajaj and Sharat Digumarti, a then manager.
The CEO spent 4 days in Tihar jail before he was released, after which he filed a case to quash the criminal complaint filed by the Delhi Police against him and his associate. Bajaj had argued that the transaction was directly between the buyer and seller, without any form of intervention from the website.
The Delhi High Court in 2005 held that prima facie and a case was made out against Bajaj and his associate. The case against bazee.com was made out for listing the video clip and its content, which was pornographic in nature. Bajaj was held liable under Section 85 of the IT Act which states that when a company commits an offence under the IT Act, all the executives in charge at that time must be held liable.
However, the decision was later overturned by Supreme Court in 2012, which held that Bajaj and the website will not be held accountable as they were not directly involved in the transaction. After the decision, the IT Act was amended to introduce Section 79.
What will happen if social media firm is not protected under Section 79?
Nothing will change overnight. As of now, the social media intermediaries will continue to function, without any disruptions. Users will be able to post and share the content on their pages without any form of disturbances.
The social media intermediaries such as Facebook, Twitter, and Instagram have so far not appointed a resident grievance officer, a nodal contact person, and a chief compliance officer as required under the new social media rules announced by the government.
The platforms have also failed to submit the monthly action reports on complaints and grievances submitted to them by the users. Thus, the protection under Section 79 will not hold for them.
Global norms in safe harbour protection for social media platforms:
As most of the bigger and influential social media intermediaries have their headquarters in the United States, the most keenly watched is Section 230 of the 1996 Communications Decency Act. It provides the internet firms a safe harbour from any content that the users post on these websites.
As per the experts, it is this provision in the United States law that has enabled companies such as Twitter, Facebook, and Google in becoming global conglomerates.