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IT whiplash for social media for missed deadlines?

Except for Koo, online platforms did not comply with new rules.

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KOLKATA: Social media platforms in India, barring Koo, failed the compliance test of the Indian government to appoint grievance officers in India as the three month deadline expired today (May 26).

Many international online platforms, including Twitter, were in regular conflict with the government amidst a heightened scrutiny and complaints over privacy in the last one year. In the latest such incident the Delhi Police raided the micro-blogging site’s Delhi office on Monday.

Facebook too has had its fair share of controversies, and backlash from both opposition and ruling political parties in the country.

Given this situation, the government issued new intermediary guidelines for social media platforms last February with a three-month deadline for compliance. It had directed intermediaries to appoint a grievance officer based out of India for timely redressal of complaints by users.

As per the rules that came into force today, every social media intermediary was required to appoint a chief compliance officer and a nodal contact person for 24/7 coordination. They were also directed to publish monthly compliance reports with details of complaints received and commensurate action taken.

The rules come into effect from today (26 May) but no other social media giant has complied with the new rules barring Koo. The question being asked by Indian consumers is whether these intermediary platforms will be banned now?

As a first step, the government may serve show cause notices upon these platforms while asking about the reasons in delay (read non-compliance). The act and the rules empower the government to force stop a particular platform from operating access in India but, it is very unlikely that the government will invoke the same at the very first instance, according to a legal expert. “Most of the intermediaries are in the process (read various stages) of complying with the rules,” he added.

"We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and to improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform,” a spokesperson for  Facebook said on Tuesday.

Social media platforms like Facebook and Twitter have hitherto enjoyed the status of “intermediaries” under the IT Act, 2000, and were exempted from the liabilities that would otherwise accrue for publication of illegal content,  according to  partner at Bharucha & Partners Kaushik Moitra.

As per the provisions of Section 79 of the IT Act, 2000, “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.”

Simply put, an intermediary is not liable for any content posted on its platform by a third-party if it is merely facilitating the transfer of information between third-parties, Moitra explained.

Social media platforms are welcome to do business in India, but they are also required to practise “due diligence” under the new guidelines, failing which safe harbour provisions do not apply to them, union information technology minister Ravi Shankar Prasad had said at the time of introducing the rules. The rules in India go beyond a single content moderation body and have mandated a more complex institutional structure to regulate information flow through intermediaries, BMU Law school dean Nigam Nuggehalli pointed out.

“It’s not merely the appointment of officers but the bureaucratic structure that comes with it-maintenance of records, hearings and government scrutiny- that must be reviewed carefully to ensure a balance is maintained between discouraging abuse and fake news on the one hand and innovation and creativity on the other,” he further added.

The IT Rules, 2021 themselves do not set out any penalties for non-compliance of their stipulations. The provisions of the IT Act, 2000 are relevant, Moitra clarified.

“The government may decide to (i) revoke the ‘intermediary’ status of the social media platforms, therefore taking away the immunity enjoyed by them; (ii) per the IT Act, 2000, the penalty for failure to furnish information, return, etc. as required under the Act or the Rules, ranges from Rs 5000 – Rs 10,000 for every day during which such failure continues; and (iii) otherwise for contravening any rules or regulations made under the IT Act, the social media platforms may be required to pay a compensation or penalty of INR 25,000.

Additionally, the government may issue blocking orders against such non-compliant platforms under the IT Act,” he added.

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