New norms: Threat of criminal action pushing social media firms to move court

By: |
June 08, 2021 6:20 AM

The penal provision in the earlier IT rules with regard to imprisonment was limited, in the sense that if social media firms failed to remove/block/monitor/intercept content if directed by the government under Section 69A of the IT Act, they could lose legal immunity under Section 79, and under Section 69 could face imprisonment for a term which could extend to seven years and there could also be a fine.

Section 79 of the IT Act provides social media companies intermediary status, which provides them exemptions and certain immunity from liabilities for any third-party content and data hosted by them.Section 79 of the IT Act provides social media companies intermediary status, which provides them exemptions and certain immunity from liabilities for any third-party content and data hosted by them.

It is the provision of initiating criminal liability for non-compliance of any part of the new Information Technology (IT) rules – which came into force from May 26 – which has led some social media companies to move court, challenging either certain mandates or disputing that some of their services can be categorised as social media intermediary.

The penal provision in the earlier IT rules with regard to imprisonment was limited, in the sense that if social media firms failed to remove/block/monitor/intercept content if directed by the government under Section 69A of the IT Act, they could lose legal immunity under Section 79, and under Section 69 could face imprisonment for a term which could extend to seven years and there could also be a fine.

However, the new rules are all encompassing, have introduced new mandates, and non-observance of any of the rules can lead to initiation of criminal action leading to imprisonment, which can be a life term also. A new Rule 7 has been inserted dealing with the non-observance of the rules, which states, “Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and 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”.

“What action could be taken against an intermediary if it failed to comply with the rules was a grey area in the earlier law. Now, it has been made crystal clear that criminal action can be initiated,” says Pavan Duggal, cyberlaw expert and a Supreme Court advocate. “Social media firms should be proactive in complying with the new intermediary rules as the provision for criminal liability, which is a new feature in the law, can have serious consequences for them,” Duggal added, stating that merely challenging the law in the court will not be of use unless the court stays the law.

Section 79 of the IT Act provides social media companies intermediary status, which provides them exemptions and certain immunity from liabilities for any third-party content and data hosted by them.

On May 25, a day before the new rules came into force, popular messaging platform WhatsApp was the first to challenge in the Delhi High Court a clause of the new intermediary guidelines, which requires it to provide the first originator of what is deemed as mischievous messages by the government. The company stated in its petition that the new requirement under Rule 4(2) is ‘unconstitutional’, ‘illegal’, and ‘ultra vires the IT Act’.

Rule 4(2) is a new mandate and singularly impacts WhatsApp. The company has long resisted the inclusion of this clause with some support from civil society activists, on the pretext that it forces it “to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely”.

On June 2, Google LLC became the second company to move the division bench of the Delhi HC against the order of its single judge, which in an April 20 order, directed it to remove morphed pornographic pictures of a woman on certain pornographic websites, within 24 hours of receiving the order. The order stated that failure on the part of Google to remove the objectionable content from all the sites worldwide would lead the company to lose the immunity that it enjoys as an intermediary under Section 79(1) of the IT Act and its officers would be liable for action as mandated by Section 85 of the IT Act.

The complaint of the woman was that her pictures from Facebook and Instagram were taken by offenders, morphed and posted on certain pornographic sites.

In its appeal before the division bench, Google has contended that it was erroneous on the part of the single judge to refer to its search engine as a social intermediary as it was an aggregator. Further, it stated that it can remove the objectionable content from India, but it may not be possible for it to deploy automated tools to do the same globally.

Though the Google case is a year old, the single judge used the provisions of the new IT rules while pronouncing the order in April this year. The new IT rules were notified on February 25 but came into force from May 26.

Microblogging site Twitter, which has so far not complied with the new rules in the sense that it has not appointed a chief compliance officer and a resident Indian company staff as grievance officer and a nodal contact person, runs the risk of losing its intermediary status and face criminal action.

The government, on June 5 sent a notice to Twitter stating it was giving the microblogging site one last chance to comply by making the appointments as per law or else the company could lose exemption from liability as an intermediary, and action against it can be initiated under Rule 7 of the new rules.

On May 27, Twitter, through a statement, had raised concerns about its compliance officer being made criminally liable for content on the platform, the requirements for proactive monitoring and the blanket authority to seek information about its users. It said this represents dangerous overreach that is inconsistent with open, democratic principles. However, the government, while denying Twitter’s concerns, accused it of undermining the country’s laws that aim at protecting it from criminal liability.

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