On 25th February this year Centre Government had announced rules for social media platforms in the 'significant social media intermediaries' category and provided a three-month compliance window.
These Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights.
In this episode we will discuss and analyze all aspects of these guidelines and their implications.
Edited Excerpts from the debate
What is in the new guidelines?
The new rules for social media platforms and digital news outlets are called theIntermediary Guidelines and Digital Media Ethics Code.
These new guidelines were released in February, giving social media platforms including Facebook, Instagram, Twitter and Koo three months to comply.
Grievances redressal and compliance mechanism:The guidelines, announced in February, had asked all social media platforms to set up a grievances redressal and compliance mechanism, which included appointing a resident grievance officer, chief compliance officer and a nodal contact person.
Monthly reports:The Ministry of Electronics & Information Technology had also asked these platforms to submit monthly reports on complaints received from users and action taken.
Tracking:A third requirement was for instant messaging apps was to make provisions for tracking the first originator of a message.
Reach of the platforms
All significant social media platforms with more than 50 lakh (5 million) users, which means Facebook, Twitter, Instagram and Koo, for instance, are very much categorized as large social media platforms.
As of March this year,
WhatsApp has more than 390 million users in India
Facebookhad clocked 320 million users in India, as of January 2021 numbers from research firm Statista, making this the largest market for the company ahead of the US (190 million) and Indonesia (140 million).
Twitteralso has more than 17.5 million users in India, as per the numbers from January this year.
The made in India social media platform Koo has crossed 60 lakh users.
Failure to comply with any one of these requirements would take away the indemnity provided to social media intermediaries underSection 79 of the Information Technology Act.
How did the platforms react?
WhatsApphas gone to court against the rules, saying it will be compelled to trace the origin of messages and break privacy protections to users. The WhatsApp complaint cites a 2017 Indian Supreme Court ruling supporting privacy in a case known as the Puttaswamy judgment.
The Puttaswamy judgment
On 24th August, 2017 a 9 Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India and other connected matters, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy.
Facebook and Googlehave said they will ensure compliance. Facebook also says it wants to discuss some "issues which need more engagement".
Twitteris yet to comment; it is caught in the "Congress toolkit" tweet controversy and finds itself on the radar of the government and Delhi Police for marking a BJP leader's post as "manipulated media".
Global norms for social media intermediaries
United States:As most of the bigger social media intermediaries have their headquarters in the US, the most keenly watched isSection 230of the1996 Communications Decency Act, which provides Internet companies a safe harbour from any content users post of these platforms.
Experts believe it is this provision in the US law that enabled companies such as Facebook, Twitter, and Google to become global conglomerates.
LikeSection 79 of India’s IT Act, Section 230 of the Communications Decency Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
Australia:Australia passed the Sharing of Abhorrent Violent Material Act in 2019, introducing criminal penalties for social media companies, possible jail sentences for tech executives for up to three years and financial penalties worth up to 10% of a company's global turnover.
Russia:Russia's data laws from 2015 required social media companies to store any data about Russians on servers within the country.
China:Sites such as Twitter, Google and WhatsApp are blocked in China. Their services are provided instead by Chinese providers such as Weibo, Baidu and WeChat.
In a democracy like India, the governance of public platforms must be regulated in an effective manner with full accountability and improved governing structure.
Section 79 of the Information Technology Act
Section 79 says any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
Applicability:This protection, the Act says, shall be applicable if the said intermediary does not in any way, initiate the transmission of the message in question, select the receiver of the transmitted message and does not modify any information contained in the transmission.
This means that as long as a platform acts just as the messenger carrying a message from point A to point B, without interfering in any manner, it will be safe from any legal prosecution brought upon due to the message being transmitted.
The protection accorded under Section 79, however, is not granted if the intermediary, despite being informed or notified by the government or its agencies, does not immediately disable access to the material under question.
The intermediary must not tamper with any evidence of these messages or content present on its platform, failing which it lose its protection under the Act.
Information Technology Act, 2000
The Information Technology Act, 2000 came into force on 17 October 2000.
This Act applies to whole of India, and its provisions also apply to any offense or contravention, committed even outside the territorial jurisdiction of Republic of India, by any person irrespective of his nationality.
The IT Act 2000 provides an extraterritorial applicability to its provisions by virtue of Section 1(2) read with Section 75. This Act has 90 Sections.