What are the New Social Media Guidelines Implemented by the GOI?
Date : 10 Jul, 2021
Post By Advocate Shailendra Bhatnagar
The Indian government has come up with a new set of IT Rules and regulations related to social media platforms in the significant category of social media intermediaries (SSMIs). These regulations are known as Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 that have been drafted under the IT (Information Technology) Act, 2020, and will supersede the 2011 guidelines for internet intermediaries. It will need compliance even from foreign tech-giants that operate in India such as Twitter, WhatsApp, Netflix, Facebook, and Amazon, etc. These rules made a distinction between social media platforms based on their user numbers. The rules lay down an ethics code for OTT and online news platforms that will be administered by the Ministry of Information and Broadcasting. The rules are aimed at substantially empowering the regular users of digital platforms by allowing them to seek redressal for their grievances and commanding accountability in case of violation of their rights. These guidelines are designed to ensure social media remains a source of health information. The genesis of these rules lies in Re Prajwala Letter case 2015, the supreme court, in this case, ordered the government to frame the necessary guidelines/standard operating procedure (SOP) and implement them to stop child pornography, rape and gang rape imagery, videos, and sires in content hosting platforms and other applications. In Tehseen S. Poonawalla 2018 case, the SC provides the government freedom to prevent dissemination of any “irresponsible and explosive messages on many social media platforms, that have a tendency to instigate mob violence and any kind of lynching”. Consult the best lawyer online Which social media platforms fall within the ambit of the IT Rules 2021? All significant social media platforms having more than 50 lakh users, which means Twitter, Facebook, Instagram for instance, are very much classified as large social media platforms. In India, WhatsApp has more than 390 million users. Facebook has over 290 million active users, making India the largest market for the company ahead of the US (190 million) and Indonesia (140 million). Twitter has 18.8 million users in India as per the latest statistics. Salient Features of New Guidelines – The Due diligence to be Followed by Intermediaries – The rules require intermediaries including social media intermediaries to follow due diligence. If the intermediary does not follow it then the safe harbour provisions will not apply to them. Grievance Redressal Mechanism –It aims to empower users by directing the intermediaries to form a grievance redressal mechanism for solving the complaints of users or victims. Intermediaries shall appoint a Grievance Officer to handle complaints and share such officer’s name and contact details. They must acknowledge the complaint within 24 hours of receiving it and resolve it within 15 days. Ensuring online safety and dignity of users especially women – the intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that violate the dignity of the person.
Additional Due Diligence to be followed by social media : Appointment of Chief compliance officer who will be responsible for ensuring compliance with the rules and act. Appointment of a Nodal Contact Person for the purpose of 24x7 coordination with law enforcement agencies. Appointment of a Resident Grievance Officer to perform the functions that is mentioned under the Grievance Redressal Mechanism. All officers must be a resident in India. Monthly compliance report – there should be the publishing of a monthly compliance report, mentioning the details of complaints received and action taken as well as details of contents removed proactively by the significant social media intermediary. The identification of the first originator of the message or information. Significant social media intermediaries shall have a physical contact address in India published on its website or mobile app or both. The Voluntary User Verification Mechanism: Users who voluntarily wish to verify their accounts shall be given an appropriate mechanism to verify their accounts and provided with a demonstrable and visible marks of verification. Providing Users an Opportunity to Be Heard: when significant social media intermediaries remove or disable access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information along with a notice outlining the grounds for such action. Negative Impact of New guidelines: Violation of Fundamental rights – the traceability of content and content originator infringe the user’s Right to privacy. The rules restrict Freedom of speech by fixing the government as the ultimate adjudicator of offensive speech online. Introduction of rules without Proper Legislation – These rules are not based on the approval of parliament and have been arbitrarily made using section 79 of the IT act. There was also not much public consultation. Depriving of Fair Recourse – An intermediary is now required to remove content within 36 hours after receiving orders from the government. It deprives the intermediary of fair recourse if it disagrees with the order of the Government. Concerns for the Intermediaries: The guidelines lead to an erosion of the safe harbour protection provided to intermediaries under section 79 of the act. These rules need more expenses and labour on the part of the platforms. Affect end-to-end encryption: Messaging apps such as WhatsApp or Telegram will likely have to break end-to-end encryption to trace the originator of the content. It will affect the privacy policies of these apps. Get in touch with the best lawyer online What will happen if platforms fail to comply with guidelines: If the social media platforms and the digital content media outlets fail to meet with any of the mentioned requirements then the indemnity is provided to the social media intermediaries under section 79 of the IT Act will be taken away. Section 79 of IT Act: - According to section 79 of the IT act, an intermediary will not be held legally or otherwise liable for any third-party information, communication, or data link made available or housed on its platform. according to Section 79 of the IT Act. The act states that the protection will be applicable if the intermediary does not 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. Although, the protection u/s 79 will not be granted in case the intermediary, despite being notified by the government or its agencies does not immediately disable access to the material under question. The intermediary should not temper any proof of these content or messages on its platforms, failing which it will lose its protection under the act.
