The Union government had earlier warned that non-compliance with the new IT rules would result in social media companies losing their intermediary status that provides them exemptions from liabilities for any third-party information and data it hosts.

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Atom Social media Tuesday, May 25, 2021 - 15:10

As the deadline for social media companies to accept the Union government’s new IT rules ends on May 25, none of the social media giants, including WhatsApp, Facebook and Twitter, has complied fully with the new rules, which left many wondering whether they will get banned in India. The Union government had given three months to the social media companies to adhere to their new rules, failing which it had warned of action. Till date, only Koo, the Indian microblogging and social networking website, has said that it has implemented the rules. 

Facebook, on May 25 (Tuesday), told TNM that it is aiming to comply with the rules and is holding further discussions. "We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform,” a Facebook spokesperson said. Twitter, however, has not made any comments on the same. This deadline for Twitter also comes on the backdrop of the Delhi police visiting Twitter India office over the alleged 'COVID toolkit', asking it to share information based on which it had classified a related tweet by BJP spokesperson Sambit Patra as “manipulated media.”

The Union government had earlier warned that non-compliance with the new IT rules would result in these social media companies losing their intermediary status that provides them exemptions from liabilities for any third-party information and data hosted by them. Does this mean they will get banned? No, say experts. 

Speaking to TNM, Nikhil Pahwa of Medianama said that a ban was unlikely, but it all depends on what the government wants. “I don’t think it is likely that they will get banned anytime soon because the laws are such that they are typically implemented arbitrarily. For example, the official deadline for OTT streaming services to be in compliance with the rules was February 25 when the rules were formally issued and notified. But even as of last week, many of the OTT streaming companies were not in compliance. They hadn’t set up these processes and rules. Ideally, from what it seems, there hasn’t been sufficient time given for companies to comply with the rules and they should have been given more time and they should probably be given an extension. Unless the government decides to do something, nothing will happen,” he said. 

Nadika Nadja, a researcher at HasGeek, said that there could be serious consequences of non-compliance. As per the rules, criminal liability will be attached to the chief compliance officer if the company has already appointed one. Otherwise, the company may either be forced to shut down or suspend its services in the country, she says. 

The other consequence could include, she adds, the removal of safe harbour protections, as the rules state that provisions of sub-section (1) of section 79 of the IT Act will not be applicable. The “intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code,” the rules state. 

“They can be held criminally liable for any violation. The whole idea of safe harbour will be affected,” Nadika said. Safe harbour, in this instance, is that as long as they are in compliance with certain requirements, they have safe harbour, from, for instance, criminal prosecution. In this case, the company is not held liable for what users post. These rules are going to significantly affect that therefore if the company is deemed in violation of the rules, the safe harbour status can be removed,” she adds.

As per data cited by the government, India has 53 crore WhatsApp users, 44.8 crore YouTube users, 41 crore Facebook subscribers, 21 crore Instagram clients, while 1.75 crore account holders are on microblogging platform Twitter. The new rules were introduced to make social media platforms like Facebook, WhatsApp, Twitter and Instagram — which have seen a phenomenal surge in usage over the past few years in India — more accountable and responsible for the content hosted on their platform.

Multiple bodies representing these companies have written to the government to extend the timeline to comply with these rules as well. According to The Hindu, various bodies, including FICCI and CII have sought extensions of between six months and one year.  None of the social media companies have, however, gone to court against the rules, while digital news organisations have. Petitions have been filed in various courts by The Foundation for Independent Journalism (that runs The Wire), Dhanya Rajendran (Editor-in-chief of TheNewsMinute), LiveLaw, The Quint and Prathidwani.

What are the IT rules?

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 bring social media and digital news organisations under a three-tier regulatory framework. ‘Significant social media intermediaries’ as defined by the Act- which includes platforms like Twitter, Facebook and Instagram- also have to appoint a Chief Compliance officer, a resident grievance officer and a nodal contact person for 24x7 coordination with law enforcement agencies. They also have to publish periodic compliance reports every month mentioning the details of complaints received and action taken.

Other than this, social media platforms have to track a message’s originator if the government or a court asks them to. This rule has raised concerns about the breach of user privacy. 

Social media companies will have to take down posts depicting nudity or morphed photos within 24 hours of receiving a complaint.

The rules also state that users who voluntarily want to verify their accounts should be given an appropriate mechanism to do so, and be accorded a visible mark of verification. 

Users will have to be provided with a prior intimation and explanation when a significant social media intermediary removes content on its own. In such cases, users have to be provided an adequate and reasonable opportunity to dispute the action taken by the intermediary.

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