Govt walks the thin line between social media accountability and user privacy

Experts state that the guidelines are a welcome move to bring some sanity to social media

e4m by Javed Farooqui
Published: Feb 26, 2021 8:03 AM  | 8 min read
Social Media

The guidelines issued for intermediary platforms under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 seek to make services like Twitter, Facebook, and WhatsApp accountable for the content that is hosted on their platforms.

The guidelines also provide for quick redressal of consumer complaints besides compelling platforms to follow due diligence. In order to tackle fake news, provisions like the first originator of the message have also been prescribed. Voluntary disclosure of users has also been provided for in the guidelines.

Experts state that the guidelines are a welcome move to bring some sanity to social media. However, the next big challenge will be ensuring that these guidelines are implemented in letter and spirit to make them effective in tackling menaces like fake news, hate speech, explicit content and sexual harassment.

While notifying the rules, the government noted that social media intermediaries are no longer limited to playing the role of pure intermediary and often become publishers. Social media platforms have amassed a huge user base in India thanks to the proliferation of smartphones and availability of cheap data. WhatsApp is the biggest platform in India with 53 crore users followed by YouTube with 44.8 crore users. Facebook has 41 crore users while Instagram and Twitter have 21 crore and 1.75 crore users respectively.

One of the most significant changes proposed by the new rules that have been framed under the Information Technology Act, 2000 is that the social media intermediaries will have to follow due diligence prescribed by the IT Rules 2021. If the due diligence is not followed, the ‘safe harbour’ provisions under section 79 of the IT Act will not apply to the social media intermediary.

‘Safe harbour’ provision provides legal protection to intermediaries who host user-generated content and exempts them from liability for the actions of users on their platform if they adhere to guidelines prescribed by the government.

“The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them,” the government said in a release.

Another notable clause in the new rules is the requirement for significant social media intermediaries providing messaging services like WhatsApp, Telegram and Signal to enable identification of the first originator of the information. This rule is expected to help in preventing the dissemination of fake news and unverified/vulgar content.

"The social media platform will be asked to require to reveal the first originator of the mischievous tweet or message as the case may be and this should only be in the connection to integrity and sovereignty of India," IT minister Ravi Shankar Prasad said during a press conference.

The first originator of such information will face imprisonment for a term of not less than five years. Also, the intermediary will not be required to disclose the contents of any message or any other information to the first originator.

However, senior advocate Menaka Guruswamy has reportedly said that the issue of first originator has the potential to impact privacy rights. She also said that the end-to-end encryption provided by the platforms to protect the privacy of the users would end by forcing them to reveal the identity of the originator of the content.

"The new Information Technology Rules, 2021, seek to regulate social media intermediaries like WhatsApp and Signal. By forcing the identity of the originator to be disclosed, will burden end to end encryption facility that is provided by these platforms. This will impact privacy, speech, express and conscience rights under the Constitution," Guruswamy told PTI.

The intermediary will have to remove unlawful information upon receiving actual knowledge in the form of an order by a court or being notified by the appropriate government or its agencies through an authorised officer.

The guidelines also provide for a voluntary user verification mechanism wherein users who wish to verify their accounts voluntarily will be provided with an appropriate mechanism to verify their accounts and provided with a demonstrable and visible mark of verification.

Filter Coffee Co. Founder and CEO Anuja Deora Sanctis said that the latest IT rules for social media were long overdue. “The opportunity for voluntary users to be able to apply for verification is most appreciated with orders of appropriate verification put to action. Intermediaries appointing Grievance Officers to deal with user complaints is something that was required not only for users but also for brands, especially with misinformation spreading across social media like wildfire. Being accessible to the grievance redressal mechanism is a plus for agencies like ours in the digital industry who work with brands,” she stated.

In order to empower the users, the rules mandate intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving resolving complaints from the users or victims. They will have to appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officer. The Grievance Officer will have to acknowledge the complaint within 24 hours and resolve it within fifteen days from its receipt.

Intermediaries will have to remove or disable access to any form of nude content withing 24 hours of receipt of receiving a complaint. Such a complaint can be filed either by the individual or by any other person on his/her behalf.

J Sagar Associates Partner Sajai Singh said requirements like traceability, local address requirement and 24-take down will put pressure on social media platforms. “The absence of Upload Filter requirements for Intermediaries and the self-censorship for OTT platforms does make me feel heartened that the Government did make a note of stakeholder opinion while framing The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (2021 Rules); though elements of traceability, local address requirement and 24-take down will surely put pressure on social media intermediaries,” Singh said.

Homegrown microblogging platform Koo said that the social media guidelines set forth under the Indian laws help clarify the responsibilities of intermediaries. “Only a small fraction of the social media users are found to be making posts that may be against the laws of the land. The social media guidelines help make addressing these kinds of situations uniform across all social media platforms and ensure the safety of the majority of social media users across India,” the platform said in a statement.

The rules make a distinction between social media intermediaries and significant social media intermediaries based on the number of users on the social media platform. The rules require significant social media intermediaries to follow certain additional due diligence. These include appointing Chief Compliance Officer, Nodal Contact Person, and a Resident Grievance Officer.

Additionally, they have to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary. A significant social media intermediary must have a physical contact address in India published on its website or mobile app or both.

Digital marketing agency SoCheers Director Rajni Daswani that the guidelines, if implemented properly can bring down cases of cybercrime.

“These code for social media is a good step towards safety on the internet and if monitored by the Grievance Redressal that is set up, we should see cases of cyber-crime (especially the bullying, ghosting and all) reduce or much better managed than they are currently. Waiting to see how the self-regulation thing works out though since this has been a completely non-regulated forum so far,” Daswani said.

The rules also mandate that users must be provided with an adequate and reasonable opportunity to dispute the action taken by the intermediary in cases where significant social media intermediaries remove or disable access to any information on their own accord.

The rules will come into effect from the date of their publication in the gazette, except for the additional due diligence for significant social media intermediaries, which shall come into effect 3 months after publication of these Rules.

While stating that the rules framed by the government are reasonable, BML Munjal University Dean Prof. (Dr.) Nigam Niggehalli noted that the real issue is the implementation of these rules.

“One more issue with the rules is that the grievance redressal and oversight mechanism for social media intermediaries must be thought through properly. One can look at the Facebook oversight board model to see if a body that is independent both of the social media intermediaries and the government can act as an effective arbitrator in disputes over the legitimacy of digital content,” he stated.

"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 carefully study the new rules that were just published. We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms. We will continue to work to ensure that our platforms play an enabling role in fuelling the exciting digital transformation of India," Facebook India said in a statement.

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