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New guidelines for social media intermediaries: Rules set for roll-out, concerns arise over lack of consultation

The IT Ministry is looking to make changes to certain Sections to the IT Act to make social media intermediaries and over-the-top (OTT) platforms more accountable for the content shared through their platforms.

Written by Aashish Aryan | New Delhi |
Updated: February 24, 2021 7:38:01 am
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Even as the Ministry of Electronics and Information Technology (MeitY) is gearing up to roll out the final version of the new rules and guidelines for social media intermediaries, stakeholders, including internet companies and public policy groups, have raised concerns about the lack of consultation on some changes likely to be introduced, sources close to the development said.

The IT Ministry is learnt to have delayed the announcement of new rules and guidelines for social media intermediaries from last week to this week, after stakeholders raised concerns on not being consulted on changes being made to key aspects such as cutting down the response time to 36 hours from 72 currently, and enforcing “traceability”. “They had not consulted anyone last week. I think they have now. Last week…were supposed to notify it but now it will be by Thursday. Two major issues were raised,” a source said.

The IT Ministry is looking to make changes to certain Sections to the IT Act to make social media intermediaries, such as Facebook and Twitter, and over-the-top (OTT) platforms, such as Netflix and Amazon’s Prime Video, more accountable for the content shared through their platforms. On February 12, IT Minister Ravi Shankar Prasad had told Rajya Sabha that the government was working to bring new rules to make social media intermediaries more responsive to the government’s directions as well as its law enforcement agencies.

Though the Ministry was ready with the plan, some of the changes, such as forcing companies to ensure traceability of certain messages without being able to ‘claim the shield of end-to-end encryption’ as well as the reduction of response time to 36 hours was a “bit too extreme”, the stakeholders told senior officials from the IT Ministry as well as other departments. “So the Twitter issue is one of the major triggers that heated up everything and the Ministry wanted to plug all loopholes. But some of the measures that they had put in the final rules and regulations have been flagged as extreme. For example, some companies said that they already have to have very large teams just to monitor and flag content which was inappropriate despite engaging third party services. Seventy-two hours as such is short notice itself, but cutting it further down to half would be very problematic,” one of the stakeholders who attended the meeting said.

Explained

Seeking liability

The IT Ministry is looking to make changes to certain Sections to the IT Act to make social media intermediaries, such as Facebook and Twitter, and over-the-top platforms, like Netflix and Amazon’s Prime Video, more accountable for content shared via their platforms.

Another key change is to amend Section 79 of the IT Act to make online companies “proactively trace, detect and prevent” unlawful content from being shared on their platforms.

“The traceability requirement will break encryption and will affect the right to privacy of citizens and their ability to secure their communications. This provision is a violation of informational privacy, which has been recognized as a fundamental right by the Supreme Court,” said Prasanth Sugathan, legal director, Software Freedom Law Centre, India.

Though stakeholders have not raised concerns about this amendment, they have asked the government to consider not inserting any penal provisions here, sources said.

“It was always an eventuality that was going to happen. Because the service providers rather than proactively doing stuff, they chose mute spectator role. Nothing stopped them from proactively taking action. They all wanted to take the benefit of the Indian market and do the least in terms of compliance,” said Pavan Duggal, cybersecurity law expert and senior Supreme Court advocate.

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