The new rules for social media platforms and digital news outlets, called the Intermediary Guidelines and Digital Media Ethics Code, came into effect from Wednesday.
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. The Ministry of Electronics & Information Technology had also asked these platforms to submit monthly reports on complaints received from users and action taken. A third requirement was for instant messaging apps was to make provisions for tracking the first originator of a message.
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Failure to comply with any one of these requirements would take away the indemnity provided to social media intermediaries under 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. 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.
The need to provide protection to intermediaries from actions of third parties came into focus following a police case in 2004. In November 2004, an IIT student posted an obscene video clip for sale on bazee.com, an auction website. Along with the student, the Crime Branch of Delhi Police also arrested the then chief executive officer of the website, Avnish Bajaj, and a then manager, Sharat Digumarti.
Bajaj spent four days in Tihar jail before he was released, following which he filed a case seeking quashing of the criminal complaint filed by Delhi Police against him and his associate. He argued that the transaction was directly between the buyer and the seller, without any intervention from the website.
In 2005, the Delhi High Court held that prima facie, a case was made out against Bajaj and his website. The case against the website was made out for listing of the video clip and its content, which were pornographic in nature, while Bajaj was held liable under Section 85 of the IT Act. This Section says that when a company commits an offence under the IT Act, all executives in-charge at that time should be held liable and proceeded against.
This decision was overturned in 2012 by the Supreme Court, which held that Bajaj or the website could not be held accountable since they were not directly involved in the said transaction. Following the decision, the IT Act was amended to introduce Section 79.
What happens if a social media firm is no longer protected under Section 79?
As of now, nothing changes overnight. Social media intermediaries will continue to function as they were, without any hiccups. People will also be able to post and share content on their pages without any disturbance.
Social media intermediaries such as Twitter, Facebook, and Instagram have so far not appointed a resident grievance officer, chief compliance officer and a nodal contact person as requires under the new rules announced in February. They have also failed to submit monthly action taken reports on grievances and complaints submitted to them by users. Thus, protection under Section 79 of the IT Act does will not hold for them.
Further, Rule 4(a) of the IT Rules, which mandates that significant social media intermediaries must appoint a chief compliance officer (CCO) who would be held liable in case the intermediary fails to observe the due diligence requirements, also undermines the safe harbour protections.
This, legal experts said, means that if a tweet, a Facebook post or a post on Instagram violates the local laws, the law enforcement agency would be well within its rights to book not only the person sharing the content, but the executives of these companies as well.
“Reading the provisions of the IT Rules in consonance with Section 69(a) of the IT Act suggests that this liability can even be criminal in nature where the CCO can be made to serve a prison term of up to 7 years,” said Kazim Rizvi, founder of public policy think-tank The Dialogue.
The absence of the umbrella protection of Section 79 could also lead to situations where employees of the platform may be held liable for no fault on their part, said Prasanth Sugathan, Legal Director at SFLC.in. “This could lead to a situation where employees of social media giants could be held personally liable for failing to ensure that their employer complied with the statutory provisions. The employees could also be held liable for no fault on their part,” he said.
What are the global norms on safe harbour protection for social media intermediaries?
As most of the bigger social media intermediaries have their headquarters in the US, the most keenly watched is Section 230 of the 1996 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.
Like Section 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”.
This effectively means that the intermediary shall only be like a bookstore owner who cannot be held accountable for the books in the store, unless it is proven that there is a connection between the writer or publisher of the book and the bookstore owner.