Calling the new intermediary guidelines for social media platforms such as Facebook, WhatsApp, Twitter and YouTube ‘drastic’ and ‘the world’s strictest regulations’ for intermediaries, legal experts and technology industry insiders said the new guidelines could have ‘significant’ implications for social media platforms in India.

Some said there was nothing wrong with the government expecting more responsible behavior from the social media platforms in a market as big and diverse as India.

“While the guidelines are on expected lines, it is a significant change. Even for regular intermediaries, there are several implications that have been revised from the 2011 position. It is arguably the strictest regulation for intermediaries anywhere in the world,” said Nikhil Narendran, partner at Trilegal.

“Companies operating in this space will find these changes drastic. For instance, social media companies will now need to identify a grievance redressal officer in India with an Indian passport. Till now these companies could have such officers sit outside India, without real enforcement risk. Now they need to identify a person in India for this role and the law will have more teeth,” he added. Narendran said there is less room for companies to argue and give information and the flipside is that there could be much more government surveillance and an increase in government banning or blocking orders.

“How foolproof is the implementation of the rule for the identification of the first originator of the information is to be tested because it has a potential for misuse,” said Chandrima Mitra, partner at DSK Legal.

Sanchit Vir Gogia, chief executive for consultant Greyhound Research said prima facie, there isn’t anything wrong in the government mandating social media platforms to be more responsible in their approach on how they manage information especially for a country as large as India where misinformation can flow rather quickly.

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“The sporadic nature in which the policies of social media companies have been formed, and implemented is highly questionable. It would be wrong to hold the government completely responsible for such a move. But, it is a double-edged sword. There can always be avenues where such powers are misused,” he added.

Twitter declined to comment on the new rules. Facebook and YouTube did not respond to an email seeking comments.

Mayank Bidawatka, co-founder of Indian microblogging platform Koo, which is being preferred by government officials post the face-off with Twitter, said the new rules will ensure the safety of the majority of social media users across India.

“The new policies will help protect the interest of citizens at large and keep nefarious elements at bay. We understand the need for these guidelines and will continue to work in the best interest of our users at all times and ensure they have a great experience,” he added.

The government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 on Thursday and stated that the rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement.

Making a distinction between social media intermediaries and ‘significant’ social media intermediaries based on the number of users on the platforms, the government said the rules require the significant social media intermediaries to follow additional due diligence. Significant social media intermediaries are expected to appoint Indian resident chief compliance officers, who shall be responsible for ensuring compliance with the act and rules, nodal contact persons for 24×7 coordination with law enforcement agencies and grievance officers.

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Significant social media intermediaries are also expected to publish a monthly compliance report mentioning details of complaints received and action taken on the complaints as well as details of contents removed proactively. Significant social media intermediaries providing services primarily in the nature of messaging have to enable identification of the first originator of the information, which the government said, is required only in the interest of prevention, detection, investigation and punishment of an offence related to the sovereignty and integrity of India, the security of the state or in relation with rape, sexually explicit material or child sexual abuse material.

Significant social media platforms are also expected to have a physical contact address in India published on their website or mobile app besides a voluntary user verification mechanism for users who wish to verify their accounts. In cases where significant social media intermediaries remove or disable access to any information on their own accord, then a prior intimation for the same has to be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such actions.

Users must be provided with an adequate and reasonable opportunity to dispute the action taken by the intermediary.

As per the rules, social media intermediaries, upon receiving a court order or being notified by the appropriate government agencies through authorized officers, should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.

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The grievance officer of intermediaries should acknowledge the complaint within twenty-four hours and resolve it within fifteen days from its receipt. The government said in order to ensure the online safety and dignity of users, especially women, social media intermediaries should remove or disable access within 24 hours of receipt of complaints of content concerning full or partial nudity and impersonification.

The government said the rules will come into effect from the date of their publication in the gazette except for the additional due diligence for significant social media intermediaries which shall come into effect three months after the publication of these rules.





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