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Safe Harbour and Information Technology Rules 2021

By: Yogda Kakirde

Student, X Semester, B.A.LL.B (Hons.), Department of Law, Prestige Institute of Management and Research, Indore

 

Social media has become an integral part of our everyday lives, whether it is communication, interaction, information, business, promotions or anything it’s the primary medium to indulge in any kind of public discourse. Since there has been a rise in the usage of Internet Communities there is a huge challenge to create content moderation and to strike a balance between freedom of speech and hate speeches. It’s the need of the hour to set some uniform standards of control in order to prevent negative setup of misinformation, hate speech, defamation etc.

Social Media platforms in India enjoys ‘Intermediary Protection’ from liability. The basic meaning of intermediary includes anyone or anything that facilitates transaction or interaction between two or more parties by bridging the gap between the two. In legal terms, the definition of intermediary is provided under section 2(w) of the Information Technology Act 2000 as “any person who, on behalf of another person, receives, stores, or transmits that record or provides any service with respect to that record, which includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces, and cyber cafes.” The concept of Significant Social Media Intermediaries was introduced in The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were released in the year 2021. Rule 2(1)(w) of the IT Rules 2021 define a “social media intermediary” as “an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.” They enable smooth communication across the globe. Few examples of Intermediaries being Twitter, Netflix, Instagram etc. In India, the criteria of being called as social media intermediary is having more than 50, 00,000 registered users. These intermediaries need to comply with the mandate of additional due diligence requirements.

The safe harbour provision under section 79 of the IT Act 2000, these Intermediaries enjoys protection from legal liability for any criminal action of a third party which is done without any knowledge of the intermediary as long as they comply with few mandates. Section 79 provides immunity clause which states that an intermediary will not be liable for third party information, data, links hosted on its platform. However, this immunity has its own condition to comply with such as adopting statutory due diligence or enforcing ‘notice and take down’ procedures. Also, an intermediary shall be liable if remove or disable access to illegal content upon receiving notice from appropriate authorities.

According to Information and Technology Rules 2021 Intermediaries are require to:

·              Appoint a Chief Compliance Officer, Nodal Contact Officer, Resident Grievance Officer

·        Publication of monthly reports which contains number of complaints received and subsequent action taken in regard of complaints raised.

·          These social media intermediaries are also instructed 2 comply with grievance redressal mechanism so that if any content put on these platforms is opposed to public policy the complaint for same can be registered with the Officer the acknowledgement of such complaints shall be within the span of 24 hours and a resolution shall be provided within 15 days.

·          These intermediaries also need to provide the identifications related to first originator of information.

Non-Compliances of these rules would result in depravation of immunity clause or the safe harbour principle which would make these social media intermediaries eventually liable for the acts committed by its users.