The internet has gone for a toss amidst the news of the failure of compliance by giant social media platforms with the new intermediary rules of India and as such, speculation of consequences ranging from banning to criminal liability has overtaken all platforms. In this article, we try to explain what the requirements under the said new law are, to whom this law applies and what the consequences of it are. We have already dealt with the new law in detail here. Therefore, this article will only focus on the specific compliances creating the uproar on the internet.
The Ministry of Electronics and Information Technology had on February 25, 2021 notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”) with an aim to regulate the uprising unregulated social media platforms in the country. The Rules not only increased the accountability of the social media platforms but also increased and eased the redressal mechanism for the users. While most of the compliances under the Rules were to be implemented on the date of their publication in the Official Gazette i.e. February 25, 2021, Rule 4, of the Rules which identified additional due diligence to be followed by the significant social media intermediaries, was due to be effective within three months from the date of notification of the threshold i.e., three months from February 25, 2021 which ended on May 25, 2021.
As per Rule 2(1)(v) read with the notification dated February 25, 2021, a significant social media intermediary shall mean a social media intermediary having more than fifty lakh registered users in India (“SSMI”). Therefore, any social media intermediary having more than fifty lakh registered users in India was mandated to ensure compliance with Rule 4 of the Rules by or before May 25, 2021.
As per Rule 4, the SSMIs are required to observe additional due diligence while discharging their duties under the Rules:
While most of the compliances as required above are general ongoing compliances, the time bound compliances are as detailed in points a, b, c, d, g and h. Therefore, SSMIs are required to ensure that the additional due diligence has been duly observed by or before May 25, 2021.
As per Rule 7 of the Rules, any non-compliance by the SSMI shall exempt them from safe harbour protection as provided under Section 79 of the Information Technology Act, 2000 (“Act”). However, the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and Indian Penal Code 1860. While the Rules fail to specify the exact consequences of non-compliance by the SSMIs, the consequences seem to be wide-ranging and most likely to depend on the impact of such non-compliance by the intermediary.
SSMIs shall ensure compliance with points a, b and c at the earliest since there is no specific qualification required for such officers and the basic requirement is that they are an Indian resident and an employee of the SSMI. Also, on further analysis of the above, it is clear that the uproar related to the popular social media platforms may be rightly articulated, however, presumptions, claims of banning and criminal consequence may be slightly overreaching/exaggerated. It shall be interesting to see how the authorities scrutinize the non-compliance and determine an adequate penalty for the same. Furthermore, WhatsApp, a messaging platform has challenged the Rules as unconstitutional on account of breach of privacy on the ground of information that this platform would be required to identify and provide under Rule 4(2). The platform has alleged that such identification of originator would require them to break encryption for both originator and receivers, which is in contravention to their policy. It would be interesting to see if the specific clause would be modified by the central government to uphold the privacy of the individual originators of messages. In any case, the court may still uphold other provisions of the Rules and make the SSMIs liable for non-compliance irrespective of the ongoing case unless otherwise ordered.