Govt curbs the power to de-platform, safe harbour enjoyed by social media giants

The centre has finally moved to curb the immunity enjoyed by big social media giants such as Facebook, Twitter and LinkedIn, writes Krishnanand Tripathi, Deputy News Editor at ETV Bharat.

New Delhi:Prime Minister Narendra Modi’s government has finally moved in to curtail the immunity enjoyed by big social media giants such as Facebook, Twitter and LinkedIn and others, under Section 79 of the Information Technology Act of 2008 that exempts them from being held accountable for the third party content shared on the platform and also curbed their powers to de-platform Indian users from their platform without giving them any grievance redressal mechanism.

Union Cabinet Thursday approved comprehensive guidelines for social media intermediaries, over-the-top players such as Netflix, Amazon Prime and others, which will also cover digital news platforms and provide for the creation of a ‘soft-touch self-regulatory architecture, a code of ethics and three-tier grievance redressal mechanism’.

It fundamentally alters the regulatory landscape under which social media giants operate in the country.

“In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them,” said the new guidelines.

A safe harbour provision, as it is popularly known, protects social media giants from being held accountable for the content shared by users on their platform. In India, Section 79 of the Information Technology Act provides a safe harbour to intermediaries, which include social media platforms and short message companies among others, if they follow certain guidelines.

Read:India warns against misuse of social media

Safe Harbour under the IT Act

Section 79 of the IT Act of 2008 says, Section 79 of the IT Act of 2008 says: An intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him if the function of an intermediary is limited to providing access to the communication system over which information by third parties is transmitted or temporarily hosted if the intermediary (i) does not initiate the transmission (ii) select the receiver, and (iii) select or modify the information contained in the transmission, and above all, if follows due diligence.

These social media giants enjoy similar protection under Section 230 of the Information Decency Act of the US.

Read:Court issues notice on social media privacy policies

Power to de-platform versus Safe Harbour

According to Rajya Sabha member Rajeev Chandrasekhar, social media giants cannot enjoy the immunity under Section 79 of the IT Act by claiming that they are just a platform and have no role to play in the content shared by third parties on their platform if they have the power to de-platform users.

In an earlier interaction with ETV Bharat, Rajeev Chandrasekhar said these platforms would have to choose between the two — safe harbor that requires them to be just a platform and completely neutral of what is being shared on their platform and the power to suppress or magnify certain content and users on their platform on their own – as in the latter situation, the social media platforms will not remain a neutral intermediary to enjoy the safe harbour.

“If they are the platform then they cannot have the power to de-platform. And if they have the power to de-platform then they have to be consistent with the Indian Laws and have to be accountable for the content and material that has been published on their platforms,” Rajeev Chandrasekhar had said while arguing the need for replacing Section 79 of the IT Act with a much more pragmatic regulatory framework.

Read:Govt's guidelines for social media platforms

Redressal of grievance of social media users

In order to address the increasing concern when social media giants such as Twitter blocked or de-platformed Indian users, the government has introduced a compulsory grievance redressal mechanism for big companies.

Communications and IT Minister Ravi Shankar Prasad said the companies having more than 50 lakh users may be considered large social media intermediaries.

According to some estimates, WhatsApp has 53 crore users in the country while YouTube has 44.8 crore users followed by Facebook (41 crore), Instagram (21 crore) and Twitter (1.75 crore) users.

“Often it has been seen that a user who has spent his time, energy and money in developing a social media profile is left with no remedies in case that profile is restricted or removed by the platform without giving any opportunity to be heard,” said the government in the new guidelines.

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The Government said that lack of transparency and absence of robust grievance redressal mechanism has left the users totally dependent on the whims and fancies of social media platforms.

While justifying the new rules, the government said, “These Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights.

Under the new rules, social media giants categorised as significant social media intermediaries will have to appoint additional due diligence by appointing a chief compliance officer that will be resident in India, appoint nodal officers for dealing with law enforcement agencies and resident grievance officer to resolve the problems faced by Indian users.

These social media giants will also have to publish a monthly compliance report of the complaints received and action taken by them.

“Intermediaries shall appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officer. Grievance Officer shall acknowledge the complaint within twenty-four hours and resolve it within fifteen days from its receipt,” said the government.

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