Internet tech giants including Facebook, WhatsApp, and Twitter could be in trouble as they are yet to fully comply with the new IT rules announced by the Government in February. The deadline to comply with the rules ended on Tuesday.

But official sources, when asked if the Government plans to take any action for non-compliance, said the “companies have time till Tuesday, so we will take a call when the situation arises. However, at present there is no such plan in place.” Asked if the companies can move court, the official said, “they can, nothing stops them. We will see when it happens.”

Under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IL Rules), prescribed by the Centre under Section 79 of the IT Act, social media companies and online entities, including OTT players like Netflix and Amazon Prime, were to put in place an oversight mechanism for digital media and online curated content.

They were asked to appoint chief compliance officers, who would be responsible for taking down objectionable content/posts within 24 hours of receiving a complaint from competent authorities.

Bone of contention

One of the major issues of contention was the requirement to trace the originator of a post/message. Facebook-owned WhatsApp, which counts India as its largest market with over 400 million users, has been resisting this on grounds of its privacy norms and its inability to trace the original sender of any message.

Ironing out issues: FB

While WhatsApp did not offer a comment, a spokesperson for its parent Facebook said the company was in talks with the government to iron out issues with the new requirements. “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 improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform,” Facebook said.

Without specifying if it has complied with the new rules, Google India said it consistently invests in product changes, resources, and personnel to combat illegal content, and to comply with local laws. “We realise that our work in keeping our platforms secure is never done and we will continue to refine our approaches, and evolve our policies and be as transparent as possible about how we make decisions,” a Google spokesperson said. Industry insiders said the players have asked the government for more time to discuss contentious issues.

The effect

“The primary consequence of non-compliance with Rule 4 of the IL Rules would be that significant social media intermediary (SSMIs) would end up losing the safe harbour protection granted to them under Section 79 of the IT Act. This could open up a plethora of unpleasant possibilities. It could leave Intermediaries open to incurring liability (civil as well as criminal) for the acts done by third-party users,” said Prasanth Sugathan, Legal Director at Software Freedom Law Centre.

Given the recent stand-off between the government and social media companies wherein WhatsApp refused to revoke its new privacy policy and Twitter tagging ruling BJP party spokesperson’s tweet as “manipulated media”, the government could take action against these companies for non-compliance with the new IT rules.

Sugathan said that since the state is the prosecuting agency for criminal cases, it will depend on how the Central Government and the state governments will initiate action against SSMIs before the courts. “In the past, we have seen employees of social media companies being named in FIRs and criminal prosecution being initiated against them. Non-compliance with the IL Rules could give more ammunition to prosecution agencies in all such cases and could dent safe harbour protection even further,”he said

According to Apar Gupta, Executive Director of Internet Freedom Foundation, social media companies could find it very difficult to operate in India as they will be liable in all types of legal cases. “If there is consistent non-compliance, it may even potentially lead to certain significant social media intermediaries being blocked in India,” Gupta said.

Industry experts said that since some of the obligations did not form part of a consultative process, it imposes an unjust burden along with a short time bracket for compliance. “The government should pay heed to the legitimate concerns raised by the social media companies and perhaps give more time,” said an industry executive.

With inputs from S Ronendra Singh in New Delhi

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