In less more than a decade, the influence of social media and OTT platforms have gone from being an entertaining extra to a completely integrated element of nearly every aspect of daily life for several. As quickly as social media has infused itself into the workplace, home life, and politics and elsewhere, it continues to emerge at lightning speed, making it difficult to predict which way it will morph next.
According to Berger, "Social media is like a drug, but what makes it significantly addictive is that it is adaptive. It adjusts according to your preferences and behaviours." The most popular social media sites include Instagram, Facebook, WhatsApp, Twitter, Youtube, Snapchat, etc. These have become a very indispensable part of our lives.
In recent years, social media sites have even become hotbeds for criminal activities. To protect the users from becoming a trap of this, the Government of India introduced the new rules for social media platforms and digital news outlets, called the Intermediary Guidelines and Digital Media Ethics Code, 2021. These new guidelines were announced in February 2021, giving social media platforms such as Facebook, Twitter, Instagram, Koo, etc. three months to comply.
If the websites fail to comply with any one of the guidelines, it would take away the indemnity granted to social media intermediaries under Section 79 of the Information Technology Act.
SECTION 79 OF THE IT ACT
Section 79 says any intermediary shall not be held legally responsible for any third party information, data, or transmission link made available or entertained on its platform. This protection shall be relevant if the said intermediary does not in any way, start the transmission of the message in question, select the receiver of the forwarded message and does not change any information contained in the transmission.
This implies that as long as a platform acts just as the messenger conveying a message from point A to point B, without hindering in any manner, it will be protected from any legal prosecution caused upon due to the message being forwarded.
THE INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE 2021
The Rules implement 16-due diligence measures to be followed by intermediaries in India. This includes an obligation to not host, store or publish any information which is forbidden under it not being in the interest of public order; sovereignty and integrity of India; decency and morality; security of the State, etc.
The Rules also authorize the Centre to direct messaging platforms like 'WhatsApp', 'Facebook messenger', 'Telegram' to trace the 'first originator' of messages.
Further, all intermediaries are obliged to appoint a Chief Compliance Officer who shall be accountable for assuring compliance with the Act. Also, they should designate a nodal person of contact for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their rules or requisitions made following the provisions of law or rules made thereunder.
Additionally, the intermediaries are required to designate a Grievance Officer to deal with complaints of the users. He has to acknowledge the complaint within 24 hours and resolve it within the period of 15 days from its receipt.
Social media intermediaries such as Twitter, Facebook, and Instagram have so far not designated a resident grievance officer, chief compliance officer and a nodal contact person as demanded under the new rules released in February. They have also failed to present monthly action taken reports on grievances and complaints submitted to them by users. Thus, safeguard under Section 79 of the IT Act does will not hold for them.
Further, Rule 4(a) of the IT Rules, which mandates that popular social media intermediaries must designate a chief compliance officer (CCO) who would be held responsible in case the intermediary fails to observe the due diligence obligations, also undermines the safe harbour protections.
Faced with a deadline to comply with the Indian government’s new rules for social media intermediaries, which directs them to make provisions for “tracing the first originator of the information”, Facebook-owned messaging platform WhatsApp has moved the Delhi High Court on May 25, the final date of compliance, questioning this slant of the new rules.
WhatsApp is referring to the Justice K S Puttaswamy vs Union Of India case (2017) to argue that the traceability prerequisite is unconstitutional and against people’s fundamental right to privacy as marked by the Supreme Court decision. The petition says that the court should declare the traceability clause as “unconstitutional” and should stop it from being enforced. It is also challenging the clause which puts “criminal liability” on its employees for non-compliance.
In its petition, it contended that traceability would mean re-engineering the app just for the Indian market, which is unlikely to happen. End-to-end encryption guarantees that no third party, not even the messaging app itself can trace or decode messages.
According to WhatsApp, if it had to track an originator, then it would have to “collect information”. The case is tracing even one message leads to tracing every single message on the platform. To trace messages, WhatsApp will have to add some kind of “permanent identity stamp” or effectively ‘fingerprint’ each message, which it says will be like a mass surveillance plan.
Union Minister for Electronics, IT and law, Mr. Ravi Shankar Prasad in a comment stressed that according to all settled judicial assertion, no fundamental right, including the right to privacy, is absolute and it is subject to reasonable restraints. It is very important to note that the order to trace first originator, should be passed only with the objective to prevent, investigate, punish, etc. of inter-alia offences related to sovereignty, security and integrity of India and its people. He also said that none of the steps recommended by the Guidelines will impact the normal functioning of the app in any manner.
The court observed that privacy must be protected except in cases where legality, necessity and proportionality all estimated against it. WhatsApp claims that the new rule fails all those tests, starting with the lack of explicit parliamentary backing.
Senior advocate Shyam Divan, speaking for the foundation, spoke it included basic freedom of citizens and advised that the High Court be permitted to continue hearing the case.
The Times of India
The Indian Express
Batch- May 2021