On February 25, 2021, the Centre notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (Rules). The Rules seek to regulate Social Media Platforms, with greater compliances on platforms having a user base of more than 50 lakh users (Significant Social Media Platforms).

The Rules impose greater responsibility in terms of due diligence by platforms, obligation to provide assistance to government authorities in prevention of offences/cyber security incidents, removal of unlawful content, grievance redressal, maintenance of physical presence in India, active monitoring of content and user verification.

Specifically, for messaging services with over 50 lakh users, the Rules require messaging services providers to enable identification of the first originator of information if required by a court order or an order passed under Section 69 of the Information Technology Act 2000 (IT Act).

Challenges for users

While the Rules are needed to curb online harassment and fake news, they also pose several practical challenges.

Identification of first originator of mischievous information by Significant Social Media Platforms will be a challenge for messaging platforms that offer end-to-end encryption. Though the Rules do not require disclosure of content of any electronic message while identifying a first originator; however, when read with the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, the government has the power to break encryption and gain knowledge of the contents of any message.

Further, Significant Social Media Platforms are required to provide a voluntary mechanism for verification of user accounts and identify such verified users by a demonstrable mark.

However, if verification evolves into an industry practice, it could lead to Big Tech collecting even more personal information of users, dealing a potential blow to user privacy.

The requirement of mandatory physical presence and contact address in India for Significant Social Media Platforms will be an operational challenge for foreign platforms, considering the overheads towards infrastructure, deployment of resources and employing personnel.

A key catalyst for growth of Social Media Platforms in India has been their treatment under the erstwhile Information Technology (Intermediaries guidelines) Rules, 2011, which did not make platforms liable for user generated content, except the requirement to take down unlawful content on receiving actual knowledge.

The new Rules require Significant Social Media Platforms to deploy automated tools to monitor unlawful content, human oversight and regular review of such automated tools on parameters of accuracy and fairness, tendency of bias and discrimination and impact on privacy and security. These parameters are mostly subjective and their effective use will be subject to individual sensibilities of the personnel deployed by each platform.

The Rules are compliance-heavy with prescribed take down mechanism, timelines for grievance redressal, obligation to provide users an opportunity to be heard, monthly reporting.

While bigger platforms will have to revisit their policies to ensure compliance with the Rules, the small to mid-size platforms looking to scale up will have to account for these operational outlays.

Overall the Rules envisage a new era for Social Media Platforms setting out stricter regulatory landscape, requiring platforms to revamp their existing policies and procedures and emphasising on greater due diligence and compliances by platforms.

The Rules will not only transform the way social media companies operate in India but also how these platforms are used by people to consume and exchange content.

Banerjee, Johri and Kedia are Partner, Senior Associate and Associate, respectively at Khaitan & Co

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