The IT Rules 2021 (‘Rules’) is an important step envisioned to ensure user safety and greater protection of the right to free speech of citizenry on online platforms.
However, despite good intentions, the onerous nature of certain obligations have resulted in implementation challenges that are impacting the seamless enforcement of these rules. This article aims to discuss the prominent challenges impacting the implementation, find sustainable solutions for aligning the legitimate interests of both the government and the ‘significant social media intermediaries’ (SSMIs) to ensure harmonious enforcement of the new regime.
Twitter 'Loss' of 'Safe Harbour’ & ‘Intermediary’ Status
Recently, reports surfaced regarding Twitter losing its ‘intermediary’ status and its ‘safe harbour’ shield for failing to comply with IT Rules.
Legally speaking, the IT Act (‘Act') prescribes certain criteria for being an ‘intermediary’ and any platform that satisfies those criteria is deemed to be an ‘intermediary’ under the legislation. Thereafter, the platform continues to remain entitled to ‘intermediary’ status irrespective of whether or not it complies with its ‘due diligence’ obligations under the Act and its ensuing Rules (most importantly, the IT Rules).
Similarly, the Act accords to all ‘intermediaries’ a shield of ‘safe harbour’ which protects it from any liability stemming from the illegality of any third-party content. Unlike the ‘intermediary’ status the ‘safe harbour’ shield is not unconditional. This means that the ‘intermediary’ can lose this protection if it fails to fulfil its ‘due diligence’ obligations. However, it is the court which adjudicates whether or not an ‘intermediary’ is entitled to this shield and no other entity can decide this.
In the case of Twitter, it is true that platforms must comply with the Rules in good faith while continuing to share their concerns with the government. However, despite this, claims around the platform automatically losing its ‘safe harbour’ status and its identity of being an ‘intermediary’, are flawed given that ‘intermediary’ status can never be taken away and deciding whether an entity is entitled to ‘safe harbour’ is the sole prerogative of the judiciary.
Twitter Case Highlights Issues with Personal Liability of Chief Compliance Officer
Since the enactment of the Rules, experts have highlighted the infeasibility of the mandate on personal liability of Chief Compliance Officers.
Subjecting individual employees to legal sanctions for the platform’s failure to meet due diligence requirements is not only inconsistent with global norms but is also challenging from a human rights perspective. The concerns of personal safety and continued media attention which are some of the prominent features of this job are likely to worry any employee. The degree of pressure increases all the more given the fact that the liability is criminal in nature, which can include significant fines and even two to seven years of imprisonment.
Introducing positions such as Chief Compliance Officers is a welcome step but the mandate on personal liability needs to be reconsidered. Instead, a provision for corporate financial penalties against the intermediaries in case of non-compliance should be explored.
Indian Laws Need to be in Sync With Global Soft Law
Safe harbour is not an Indian exception but a global practice of providing intermediaries a defence against actions of third parties. The IT Rules 2021 envisage additional safeguards which, though well intended, are not in synergy with the legislations in other countries.
In India, the law laid in the Shreya Singhal judgement mandates that ‘intermediaries’ take down or block content only on receiving ‘actual knowledge’ of its illegality from the State.
However, under the U.S.’s Digital millennium Copyright Act (DMCA) this ‘actual knowledge’ can even come from the user who is the owner of the said copyrighted content. Further, upon receiving such ‘actual knowledge’ under DMCA, the ‘intermediary’ is supposed to immediately block or disable access to the content.
On the other hand, in India, Rule 4(8) of Rules, provides that before going ahead with the actual blocking or take-down, the platform must not only give detailed reasoning for its action to the user whose account is being blocked, but also provide them a reasonable opportunity to dispute the action.
This is a progressive mandate that furthers the norms enshrined under the Manila Principles on Intermediary Liability and Santa Clara Principles on Transparency and Accountability in Content Moderation which are considered global soft laws for Platform Regulation.
However, the provision’s inconsistency with the mandate in DMCA that prescribes immediate blocking is concerning. Such regulatory ambiguities between the laws of the intermediary’s parent country and the nation where it is operating, is challenging not only from a business perspective but also due to its implications of impinging upon the right to free speech of users.
National Interests and Twitter's Interests
With the rapid proliferation of harmful and illegal content on the internet, exploring impactful solutions for protecting the digital rights of the users has become crucial.
To this end, the enforcement of the IT Rules, 2021 gives the hope of creating a more enabling and inclusive online space. However, it’s impossible to ensure the seamless implementation of the new regime without ensuring coherence between the policies of the State and the intermediaries.
The government should consider tackling prevailing misnomers regarding the Rules, the infeasibility of certain overarching mandates, and work with other countries towards envisaging a globally uniform regime for regulating social media given the nature of this space.
Likewise, the SSMIs should strive to comply with the law of the land and in cases where the rules are too overwhelming, share their feedback and engage with the government.
(Shruti Shreya is a Research Associate at The Dialogue where she leads projects on social media regulation, intermediary liability and digital expression. In the past, she has worked closely with Supreme Court judges, leading advocates and law firms. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses, nor is responsible for them.)
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