The Centre Thursday notified new guidelines for intermediaries in “soft touch oversight” rules, saying these were needed to hold social media and other companies accountable for “misuse and abuse”. These will require Big Tech platforms to set up stronger grievance redressal mechanisms, and appoint executives to coordinate with law enforcement in India.
For social media platforms like Twitter, Facebook, etc, the guidelines essentially remove the “safe harbour” provided to these companies — it limited their liability over content that users posted on their platforms — if the platforms do not comply with due diligence norms.
The rules also call for a three-tier regulation mechanism for over-the-top (OTT) platforms like Netflix, YouTube, etc and require them to self-classify their content into five categories based on age suitability.
The government’s move comes amid a flurry of activity across geographies over the last 12 months to frame new regulations aimed at policing Big Tech, which may force some of the world’s most valuable companies to fundamentally recalibrate their business models in order to stay in line with these regulations.
Guidelines for Social Media Platforms
A Grievance redressal mechanism should be developed and there should be a Grievance Redressal Officer
— PIB India (@PIB_India) February 25, 2021
Although the government had been working on these rules since 2018, work on issuing the new guidelines gained fresh momentum after the de-platforming of former US President Donald Trump and the more recent spat between the IT ministry and microblogging site Twitter over removal of certain accounts affiliated with the farm protests.
The regulations also seem to take a maximalist position, driven by both the strength of the user numbers of the Indian market and increasing realisation within the administration of the tech groups’ dissemination powers encroaching on the ambit of the state, especially on issues concerning governance and law and order.
Reiterating that social media companies were welcome to do business in India but would have to follow the laws set in India, IT minister Ravi Shankar Prasad said while the government was open to criticism and right to dissent, it was “equally important” that the users of social media be given a forum to raise their grievances against “the misuse and abuse” of such platforms.
“The social media users running into crores should also be given a proper forum for resolution of their grievances in a time-bound manner,” Prasad told a press conference.
While all the rules have been framed and notified under the existing Information Technology (IT) Act, the administrative powers for regulation of OTT and digital news sharing platforms shall be under the Ministry of Information and Broadcasting (I&B).
The new guidelines place more onus on nearly all such companies which provide a platform to host, share, view or modify content, while also including for the first time, entities which are in the business of either creating or distributing news online under the ambit of an online intermediary.
Among the first, the government has made social media intermediaries more liable for the content being shared on their platform by following due diligence, failing which the “safe harbour provisions” will not be applicable to them.
These safe harbour provisions have been defined under Section 79 of the IT Act, and protect social media intermediaries by giving them immunity from legal prosecution for any content posted on their platforms.
However, the protection provided fails if the government notifies the intermediary of “any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act” and the platforms fails to “expeditiously remove or disable access to that material”.
Further, social media intermediaries will also be required to have a grievances redressal and compliance mechanism, appointing a grievance officer whose name and contact details will have to be shared, a resident grievance officer who shall have an office in India and will be an Indian passport-holding citizen, and a chief compliance officer.
The chief compliance officer, who will have to be present in India, shall be responsible for ensuring the platform’s compliance with the IT Act and the rules notified Thursday, Prasad said.
A nodal contact person who can be available round-the-clock for “coordination with law enforcement agencies” will also have to be appointed by social media intermediaries, he said.
A monthly compliance report on the complaints received, the action taken and the redressal for such complaints will also have to be published by the intermediaries, he said.
The second major change brought in with the new rules is making social media intermediaries more liable for “identification of the first originator of the information”.
“Social media intermediaries, upon being asked either by the court or by a government authority, will be required to disclose the first originator of the mischievous tweet or message, as the case may be,” Prasad said.
The platform will, however, be liable to disclose the originator of the message “only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order”.
In a statement, social media giant Facebook said: “We have always been clear as a company that we welcome regulations that set guidelines for addressing today’s toughest challenges on the Internet… The details of rules like these matter and we will carefully study the new rules that were just published.”.
Twitter did not comment on the guidelines.
Social media intermediaries will now also need to trace originators of messages which call for incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years. The government has, on a prior occasion, engaged with Facebook-owned messaging platform WhatsApp to seek traceability of certain users, a request that the platform denied.
Apart from these, social media companies have been asked to give users a chance for explanation and a fair opportunity to be heard before removing access to their accounts.
The rules for OTT platforms also follow a “soft-touch self-regulatory architecture” and call for online digital news disseminating agencies to self-categorise their content into one of the five age-based broad categories.
“The publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme, enabling the user to make an informed decision prior to watching the programme,” Information & Broadcasting minister Prakash Javadekar said.
A self-regulatory body, headed either by a retired Supreme Court or High Court judge or an independent eminent person, shall also be formed, which will ensure the compliance of ethics and rules by online digital news platforms.
The ministry shall, in due course of time, “formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances”.
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