The rules notified by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, will affect players such as Google, Facebook, and Twitter, and will include OTT (over the top) platforms such as Netflix, Amazon Prime, Disney, and Hotstar.
The rules make a distinction between social media
intermediaries and significant social media
intermediaries that have a large number of users. The government will notify the threshold of the user base that will distinguish between the two.
“We have always been clear as a company that we welcome regulations that set guidelines for addressing today’s toughest challenges on the Internet. Facebook
is committed to people’s ability to freely and safely express themselves on our platforms. The details of rules like these matter and we will study them,” said a Facebook
The rules related to social media will be administered by the Ministry of Electronics and Information Technology, while those for OTTs and digital media by the Ministry of Information and Broadcasting.
Several provisions for social media remain similar to a draft floated by the Ministry of Electronics and Information Technology in December 2018, while the provisions for OTTs to self-regulate largely agree with the industry adoption of a “Universal Self-Regulation Code for Online Curated Content Providers” (OCCP), introduced earlier this month.
Originator of content and compliance officers
While industry and experts largely welcomed the aim to regulate social media and big tech firms, among the most contentious provisions in the rules is the one of identifying the originator of problematic content.
Significant social media intermediaries providing services, primarily messaging services, will have to enable identifying the first originator of problematic content that may harm the country’s interests and several other provisions described in the rules. The social media intermediary will have to do this in response to a judicial order passed by a court or by a competent authority under Section 69 of the IT Act.
“According to the rules, it seems that the government has decided to reach out only to the low-hanging fruit, i.e. the first India-based person to share a post. Under the IT Act, you can also hold a person outside India liable for criminal content which impacts India. As long as the content lands in a computer or computer resource within India, you can exercise jurisdiction. Hence this is what the government should aim for -- to hold the actual originator liable. If this is not implemented then effectively as a nation, rights for exercising extra territorial jurisdiction are being diluted,” said N S Nappinai, advocate, Supreme Court, and founder, Cyber Saathi.
Even though IT minister Ravi Shanker Prasad said the government would only want intermediaries to identify the originator and not the content of problematic messages, Facebook-owned messaging app WhatsApp has earlier said that attributing messages on the platform would undermine the end-to-end encryption and its private nature, leading to possibilities of being misused.
In addition, the intermediaries will have to appoint a chief compliance officer responsible for ensuring compliance with the Act and Rules, a nodal contact person for 24x7 coordination with law enforcement agencies, and a resident grievance officer. All three should be Indian residents.
“The provision mandating identification of the originator of information affects encrypted messaging platforms like Whatsapp and Signal. The traceability requirement, coupled with the mandatory requirement for appointing a chief compliance officer, a nodal contact person and a resident grievance officer might make it difficult for platforms like Signal and Telegram to provide services in India. This will definitely not be in the interests of the user who will then have a limited choice of applications,” said Prasanth Sugathan, legal director, Software Freedom Law Centre, India (SFLC.in).
Intermediaries will have to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as the details of the content removed proactively by the significant social media intermediary.
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