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Social media, Fake news: Govt is proposing amendments to Intermediary Guidelines under Information Technology Act

The Ministry of Electronics and Information Technology on 24 December, 2018 released the Draft Information Technology (Intermediary Guidelines) (Amendment) Rules, 2018 (the “Draft Intermediary Rules”) and has invited comments and suggestions from all stakeholders on the same.

An ‘Intermediary’ under the Information Technology Act, 2000 is any person who on behalf of another person stores or transmits that message or provides any service with respect to that message. An Intermediary cannot knowingly host, publish or initiate the transmission, select the receiver of transmission, or select or modify the information therein. Thus, this would include telecom service providers, internet service providers, web-hosting service providers, search engines, online-payment sites, online auction sites, online market places, and also social media platforms, which seem to be the primary subject of the proposed amendment.

The Draft Intermediary Rules seeks to address the calling attention motion on “Misuse of Social Media Platform and spreading of fake news” admitted in the Rajya Sabha during the monsoon session this year. Thus, in order to strengthen the legal framework and make the social media platforms accountable the following amendments and new provisions are proposed under the Draft Intermediary Rules. Whilst the changes bring in more strict compliance from intermediaries and might drive the cost of compliance fairly high as well, it remains yet to be seen how many of these proposed changes make it to the final amendments.

Due Diligence obligations of the Intermediaries:

The Draft Intermediary Rules prescribes the following due diligence measures to be taken by Intermediaries:

Restriction on the proliferation of certain information by users

  • The Draft Intermediary Rules already requires Intermediaries to publish rules and regulations, privacy policy and user agreement, and such rules must inform the users[1] not to host, display, upload, modify, publish, transmit, update or share such information. The Draft Intermediary Rules however includes information which promotes cigarettes or any other tobacco products or consumption of intoxicant including alcohol and Electronic Nicotine Delivery System (ENDS) & like products that enable nicotine delivery in the list except to the extent permissible under the Drugs and Cosmetics Act, 1940.
  • The Intermediary is also required to inform its users at least once every month that in cases of non-compliance with rules and regulations, the Intermediary has the right to immediately terminate the access or usage rights of the users and remove non-compliant information.

Intermediaries to assist Government Agencies

  • Intermediaries with more than 50 Lakh users in India, or those Intermediaries specially notified by the government must be a registered company in India, have a permanent registered office in India, and appoint a nodal person of contact and alternate senior designated functionary for 24×7 coordination with law enforcement agencies in India.
  • The Intermediary must assist any government agency, security of the state, cyber security agency (those legally authorised) in matters of cyber security; or investigation or detection or prosecution or prevention of offence(s); protective or cyber security and those upon a lawful order. Such assistance must be provided within 72 hours and can be extended to tracing out the originator of information on its platform.
  • The government can seek the information about unlawful acts from the intermediaries by court order or by being notified by the government itself and the parameter to judge unlawful activities would be Article 19(2) of the Constitution, which would include inter alia, interests of the sovereignty and integrity of India, security of state, friendly relations with foreign states public order, decency or morality, etc. The timeline to comply with this is 24 hours, and such information and records must be preserved by the Intermediaries for at least 180 days for investigational purposes (or longer if court or government agency prescribes).

Intermediaries to develop internal mechanisms to tackle unlawful information

  • The Intermediary is required to use the help of technology based automated tools or appropriate mechanisms that should be deployed with appropriate controls for a proactive identification and removal or disabling of unlawful information or content.

Author: Mr. Avaneesh Satyang

 Sources: Invitation for Comments/Suggestions:

http://meity.gov.in/content/comments-suggestions-invited-draft-%E2%80%9C-information-technology-intermediary-guidelines

Draft Intermediary Rules:

http://meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf

[1] A ‘User’ under the Draft Intermediary Rules means any person who accesses or avails any computer resource of intermediary for the purpose of hosting, publishing, sharing, transacting, displaying or uploading information or views and includes other persons jointly participating in using the computer resource of an intermediary.