IT Rules 2021: Centre Seeks Compliance Status From Significant Social Media Intermediaries

The central government has written to significant social media companies seeking details of compliance with the new IT Rules pertaining to intermediaries and digital media as the compliance deadline ran out on Wednesday, news agency ANI reported.

In February, the government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The Rules, effective on notification, lay down guidelines on content, privacy policies, government ordered sharing of information and takedowns, retention of user information, grievance redressal and cyber security. They also prescribe a code of ethics, procedure and safeguards for digital media.

Significant social media intermediaries are those with more than 50 lakh registered users in India. Facebook, Twitter, Instagram, WhatsApp and such would come within the ambit of such a definition. Additional compliance measures apply to them under the Rules.

Such companies were required to appoint a chief compliance officer, a nodal officer and a grievance officer, all resident in India. These appointments were to be made within three months of the notification. On May 26, a government letter to them has sought these details, as well as asked companies to share their physical address in India.

According to the Rules, significant social media intermediaries are required to publish a monthly compliance report detailing complaints received, action taken on complaints and content removed proactively by the significant social media intermediary.

The Rules also require them to identify and provide the information on the first originator of a message when the government requests for it for specific purposes.

Such purpose includes:

• 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.
• Public order or of 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 letter has also asked the companies to explain the reasons if they choose to claim that they do not qualify as a significant social media intermediary.

The government has held its stand on the constitutionality of the rules and says the requirement for seeking information on the originator has adequate safeguards.

If intermediaries, including significant social media platforms, do not comply with the Rules, they will lose the safe harbour protection as envisioned by Section 79 of the IT Act, Mishi Choudhary, technology lawyer and founder and legal director at Software Freedom Law Centre, said. Meaning, they will become liable for user generated content if that content violates the law, Choudhary said.

Whether there has been a non-compliance of the rules cannot be unilaterally determined by the government and it will be made through a legal process where a judge will make that determination, said Raman Chima, lawyer and Asia Pacific policy director at Access Now.

But it is correct to say, Raman said, there is an enhanced risk the companies face of losing their immunity as intermediaries and this risk also now extends to internet providers, telecom companies and digital news companies.

The Rules currently face a number of court challenges, including by digital news media organisations such as The Wire, The Quint, Live Law as well as messaging platforms such as Facebook-owned WhatsApp. While LiveLaw has secured a court order barring any coercive action against them, there is no interim order giving such protection across the board.

The petitions by The Wire and The Quint will come up for hearing in the Delhi High Court on Thursday. The date of hearing for WhatsApp's petition is not fixed yet.

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