INFORMATION TECHNOLOGY
RULES 2021
It is found
that social media platforms such as Facebook, Instagram and Twitter are yet to
comply with their obligations under the 2021 Rules. This gave an rising apprehension
among users of such websites that these websites could either stop their operations or be banned in India for
such non-compliance.
Internet
intermediaries and protection afforded to them under law
Entities
which perform various functions including facilitation ,exchange of information
and online communication are called internet intermediaries . For example,
Facebook or Twitter are internet intermediaries.
Facebook
in no manner edit the content of a register user & he can share the
information as he wishes. This passive role played by Facebook enables it to be
classified as an intermediary.
Under
Section 79 of the Information Technology Act, 2000, intermediaries are granted
protection from incurring any liability for third-party data available
on their platform.
However,
if any such content uploaded by a third-party user is in violation of any law,
the intermediary does not incur any liability for such information.
Imagine
a situation where a third-party user posts defamatory or obscene content on
Facebook. Now, if Facebook was to be responsible for such a post, it would
necessarily mean that Facebook as a passive platform enabling online
communication is required to first scrutinize the content being uploaded on its
platform. This not only goes against their model of operation but would also
hamper free flow of information. This could also result in censorship of
information where legitimate content may be taken down on an apprehension,
resulting in third-party users’ freedom of speech and expression being not
given respect.
Section79,
which is recognized as a protective provision, enables intermediaries to
function freely without having any such obligation to monitor the content
before it is uploaded. However, the protection offered to intermediaries under
Section 79 is conditional. One of the conditions prescribed under Section 79 is
that an intermediary is required to observe due diligence while discharging its
duties and observe guidelines made by the Central Government in this regard.
In
this context, the term ‘due diligence’ is not defined under the
Information technology Act, 2000. Neither does the Act prescribe what are the
standards of due diligence required to be followed by intermediaries. This is
where the guidelines framed by the Central Government come in.
Information
Technology (Intermediaries Guidelines) Rules, 2011
Prior
to the current 2021 rules, the 2011 Rules laid down the standards of due
diligence required to be observed by intermediaries. The 2011 Rules required
intermediaries to publish rules and regulations, privacy policy and user
agreements which would enjoin each user not to post information which would be
in conflict with any law in force. These rules also required intermediaries to
disable access or remove information which is unlawful upon receiving actual
knowledge of the same.
The
Supreme Court in Shreya Singhal versus Union of India read down the requirement
of actual knowledge of an intermediary to mean knowledge of a court order
directing it to disable access or remove such information.
Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
The
2021 Rules supersede the 2011 Rules. In these rules, the requirement of
publication of rules and regulations, privacy policy and user agreements which
stipulate that no user shall post information which would contravene any law in
force has been retained. The Supreme Court’s decision in Shreya Singhal versus
Union of India on the point of actual knowledge has now been embodied in the
rules.
The
2021 Rules also now permit the intermediaries to take down any unlawful
information on a voluntary basis and such voluntary removal would not affect
the protection afforded to them under Section 79 of the Information technology
Act.
In
addition to these general requirements, the 2021 Rules lay down additional due
diligence requirements to be observed by “significant social media
intermediaries”.
Any
intermediary who primarily or solely enables online interaction between two or
more users and allows them to create, upload, share, disseminate, modify or
access information using its services and has more than 50 lakh registered
users is classified as a significant social media intermediary. Thus, all
popular social networking platforms such as WhatsApp, Facebook, Instagram and
Twitter would be required to observe these additional due diligence
requirements.
These
intermediaries were given a three-month timeline for ensuring compliance of
these rules. Each significant social media intermediary is required to
establish a grievance redressal mechanism and appoint three officers,
viz, a Chief Compliance Officer who shall be responsible for compliance of
the Information Technology Act and the rules framed there under, a Nodal
Contact Person who shall be responsible for communication with law enforcement
agencies and a Resident Grievance Officer who shall be responsible for the
grievance redressal mechanism.
All
these officers are required to be residents of India. Another obligation cast
upon these intermediaries is to enable identification of the ‘first originator’
of any information on its platform. An order directing an intermediary to
identify the first originator can only be passed for prevention, detecting,
investigating or prosecuting any offence relating to the sovereignty or integrity
of India, its security and relations with other countries, public order and in
relation to information depicting rape or sexually explicit material or child
sexual abuse material.
It is
reported that WhatsApp, which provides end to end encrypted messaging services,
has approached the Delhi High Court challenging this particular provision on
the ground that it violates the right to privacy guaranteed under the Indian
Constitution.
So
far, none of the major international social networking platforms have complied
with these requirements. Facebook has released a statement that it aims to
comply with the 2021 Rules and was in discussion with the government on certain
issues.
The
Central Government has by a letter addressed to these intermediaries
sought an update as to whether the 2021 Rules have been complied with.
If non compliance what ?
Under
Rule 7 of the 2021 Rules, if an intermediary fails to observe any of the rules
laid down, it loses protection afforded to it by Section 79 of the Information
Technology Act. Simply put, this would mean that an intermediary like Facebook
or Twitter would be open for liability if a third-party user posts unlawful
content on their platforms.
If
publication of such information amounts to an offence, the intermediaries
hosting such information would also be punishable under the relevant law in the
absence of the protection afforded under Section 79. Thus, non-compliance of
the 2021 Rules would expose the intermediaries to significant liability.
It is
unlikely that they would be banned from operating in India for such
non-compliance. It may, however, render their operations non-viable as
they may then be required to proactively monitor information uploaded on its
platform so as to avoid incurring liability.
Only
time will tell what course of action these intermediaries adopt. In the
meantime, one can only hope that for the sake of millions of people using these
platforms, the enactment of the 2021 Rules will not affect the way these
platforms operate.
