[Editorial Analysis] Social Media and Harbour

Mains Paper 2: Polity
Prelims level: Digital Media Ethics Code
Mains level: Issues related to Fundamental rights

Context:

• The author talks about the impact of new rules under Section 79 of the IT ACT on social media.

What is the issue?

• Recently new rules for social media platforms and digital news outlets called the “Intermediary Guidelines and Digital Media Ethics Code” came into effect that asked All social media platforms to set up a grievances redressal and compliance mechanism, which included appointing a resident grievance officer, chief compliance officer and a nodal contact person.
• The platforms to submit monthly reports on complaints received and action taken.
• The 3rd requirement is for instant messaging apps was to make provisions for tracking the first originator of a message.
• Failure to comply with any one of the above requirements would take away the indemnity provided to social media intermediaries under Section 79 of the IT Act.

What is Section 79 of the IT Act?

• Section 79 says –“Any intermediary shall not be held legally or otherwise liable for any 3rd party information, data, or communication link made available or hosted on its platform”.
• The protection shall be applicable if the intermediary does not in any way, initiate the transmission of the message in question, select the receiver of the transmitted message and do not modify any information contained in the transmission.
• In other words, As long as a platform acts just as the messenger carrying a message from point to point, without interfering in any manner, it will be safe from any legal prosecution brought upon due to the message being transmitted.
• The protection under Section 79 is not granted if the intermediary, despite being notified by the govt does not immediately disable access to the material under question.

The reason behind the introduction of these protection provisions:

• The need for protection of intermediaries from actions of third parties came into following following a police case in 2004.
1. When a Ceo of a website was arrested for obscene videos posted by the user.
2. In 2005, the Delhi HC held that prima facie,a case made out against Ceo and website.
3. The Ceo was held liable under Section 85 of the IT Act that says When a company commits an offence under the IT Act, all executives in charge at that time should be liable and proceeded against.
• But in 2012, SC overturned this judgment and held that Ceo and website could not be held accountable since they were not directly involved in the transaction.
1. Following the judgment, the IT Act amended and section 79 protection provisions were introduced.

New rules impact on Section 79 protection:

• No drastic impact on social media intermediaries will occur.
• As of now, as per new guidelines except Whatsapp, no social media giant has not appointed a resident grievance officer, chief compliance officer and nodal contact persons.
• They also placed to submit monthly action taken reports on grievances and complaints submitted to them.
• This all leads to undermining the safe harbor protections and following are consequences of it:
1. If any post violates local laws, the law agency not only books the person who shared the content but also the executives of the companies as well.
2. The liability can even be criminial in nature where CCO can be made to serve in prison up to 7 years.
3. It could also lead to situations where employees of the platform may be held liable for no fault on their part.

Global norms on safe harbor protection for social media:

• In the US, Section 230 of the 1996 Communications Decency Act provides Internet companies a safe harbor from any content user posts on these platforms.
1. Like Section 79 of India’s Act, Swction 230 of the Communication Decency Act states that an intermediary shall only be like a bookstore owner who can’t be held accountable for the books in the store unless it is proven that there is a connection between writer or publisher of the book and store owner.

Criticism/Concerns of new rules:

• The rule 4(2) provision requiring intermediaries to enable identification of the 1st originator of information on the platform
1. could also put journalists and activists at risk of retaliation in India and infringe upon rights to free speech and expression.
• The traceability provision also breaks the end-to-end encryption and impermissibly infringes upon the user’s fundemantal rights to privacy and freedom of speech.
1. Nowhere in the world intermediaries requires to enable the identification of the 1st originator of end-to-end encrypted information.
2. Across the globe, it was recognized the important benefits of end-to-end encryption and the dangers of undermining that security protocol.
• Rule 4(2) infringes upon Fundamental rigts to privacy without satisfying the three-part test set forth by the apex court in KS puttaswamyy vs Union of India on aspects of legality, necessity and proportionality.

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Prelims Questions:

Q.1) With reference to instant messaging app Signal, consider the following statements:
1. It is a cross-platform centralized encrypted messaging service.
2. It can be used to make one-to-one and group voice and video calls.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Answer: D

Mains Questions:

Q.1) “Tracing messages will violate privacy, chill free speech”, In this context Critically examine the new rules under section 79 of the IT Act?

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