Social Media: Prospect and Challenges

Explained: Social Media and Safe Harbour


From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Social media regulation

The new rules for social media platforms and digital news outlets called the Intermediary Guidelines and Digital Media Ethics Code has come into effect.

New guidelines for digital media

  • The guidelines had asked all social media platforms to set up a grievances redressal and compliance mechanism.
  • This included appointing a resident grievance officer, chief compliance officer and a nodal contact person.
  • The IT Ministry had also asked these platforms to submit monthly reports on complaints received from users and action taken.
  • A third requirement was for instant messaging apps was to make provisions for tracking the first originator of a message.
  • Failure to comply with any one of these requirements would take away the indemnity provided to social media intermediaries under Section 79 of the Information Technology Act.

What is Section 79 of the IT Act?

  • Section 79 says any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
  • This protection, the Act says, shall be applicable if the said intermediary does not in any way, initiate the transmission of the message in question, select the receiver of the transmitted message and does not modify any information contained in the transmission.
  • This means that as long as a platform acts just as the messenger carrying a message from point A to point B, without interfering in any manner, it will be safe from any legal prosecution.
  • The intermediary must not tamper with any evidence of these messages or content present on its platform, failing which it loses its protection under the Act.

Effect of non-compliance

  • As of now, nothing changes overnight. Social media intermediaries will continue to function as they were, without any hiccups.
  • People will also be able to post and share content on their pages without any disturbance.
  • Social media intermediaries such as Twitter, Facebook, and Instagram have so far not appointed any officer or contact person as required under the new rules.
  • They have also failed to submit monthly action taken reports on grievances and complaints submitted to them by users. Thus, protection under Section 79 of the IT Act does will not hold for them.

Liabilities with the new rules

  • Further, Rule 4(a) of the IT Rules mandates that significant social media intermediaries must appoint a chief compliance officer (CCO) who would be held liable in case the intermediary fails to observe the due diligence requirements.
  • This means that if a tweet, a Facebook post or a post on Instagram violates the local laws, the law enforcement agency would be well within its rights to book not only the person sharing the content but the executives of these companies as well.

Global norms on safe harbour protection

  • As most of the bigger social media intermediaries have their headquarters in the US, the most keenly watched is Section 230 of the 1996 Communications Decency Act.
  • This provides Internet companies a safe harbour from any content users post of these platforms.
  • Experts believe it is this provision in the US law that enabled companies such as Facebook, Twitter, and Google to become global conglomerates.
  • Like Section 79 of India’s IT Act, this Section 230 states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.
  • This effectively means that the intermediary shall only be like a bookstore owner who cannot be held accountable for the books in the store unless there is a connection.

Repercussions of the rules in India

  • WhatsApp has approached the Delhi High Court challenging the new Rules which include a requirement for social media platforms to compulsorily enable “the identification of the first originator of the information” in India upon government or court order.
  • It argued that this provision forces it “to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it.

Must read:

[Burning Issue] New IT Rules 2021

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