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Draft rules on social media intermediaries: Facebook says will need to study in detail

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Reacting to the new draft Intermediary Rules 2021, Facebook has said it will need to study them in detail. The new draft rules which were announced by the government earlier today will impact social media companies, messaging apps, online intermediaries, OTT (Over the top) content platforms and digital media publishers.

“We have always been clear as a company that we welcome regulations that set guidelines for addressing today’s toughest challenges on the Internet. Facebook is committed to people’s ability to freely and safely express themselves on our platforms. The details of rules like these matter and we will carefully study the new rules that were just published,” a Facebook spokesperson said.

“We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms. We will continue to work to ensure that our platforms play an enabling role in fuelling the exciting digital transformation of India,” it adds.

It should be noted that the roles make for a distinction between a significant and regular social media intermediary, though this will be determined on the basis of number of users. That number is yet to be determined. More significantly, the rules call for tracing the ‘originator’ of the message or tweet if required under certain circumstances.

This will present new problems for Facebook’s WhatsApp messenger, which has close to 53 crore users in India. WhatsApp is end-to-end encrypted (E2E) and does not keep a track of who started a message. That’s because E2E encryption ensures that not even WhatsApp knows when two people are sending a message or what was shared in the message. The government insists it does not wish to read the contents of the message, but only wants to know the ‘originator’.

Meanwhile, Mozilla, the parent company behind the Firefox browser express concern over the rules. “In their current form, these Rules will undeniably harm freedom of expression, privacy and security and could be subject to legal challenges. Provisions like traceability of encrypted content, harsh content take down timelines and automated content filtering are blunt and disproportionate to the intention behind these changes. Given the many new provisions, these rules should be withdrawn and be accompanied by wide ranging and participatory consultations with all relevant stakeholders prior to notification,” Udbhav Tiwari, Public Policy Advisor, Mozilla Corporation said in a statement.

According to an official press release, “Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

Intermediary shall not be required to disclose the contents of any message or any other information to the first originator, adds the statement.

Meanwhile, industry body NASSCOM (National Association of Software and Service Companies) reacted to the new guidelines and code as well stating that the new rules aims “to address many of the concern areas of grievance redressal, fake news, online safety and parity with existing laws.”

“The government has emphasised that the new rules will not curb creativity and freedom of speech and expression of the citizens and NASSCOM would urge the government to ensure that this is the design principle as these guidelines are implemented. The call for responsible freedom and ensuring that no information or data is misleading is key for a diverse democracy like India to curb the widespread issue of fake news,” NASSCOM said in a statement.

It also lauded the aspect of the guidelines which add “grievance redress mechanisms, the option of voluntary self-verification of user accounts and the right to receive an explanatory notification on removal or disablement of access” by an intermediary.

Reactions from Legal experts

Legal experts pointed out that while social media intermediaries did need regulation, the new rules will require better compliance and puts the pressure on the industry.

“The co-mingling of Intermediaries guidelines and Ethics code on OTT platforms has created more ambiguity than providing clarity. There are some positive provisions like different rules for different intermediaries, increased transparency, removal of sexual abuse material, appeal for users whose content has been taken down but these are all diluted by the provision mandating identification of the originator of information affects encrypted messaging platforms like WhatsApp and Signal. The traceability requirement coupled with the mandatory requirement for appointing a Chief Compliance Officer, a Nodal Contact person and a Resident Grievance Officer might make it difficult for platforms like Signal and Telegram to provide services in India. This limits user choice who has come to expect encrypted, safe messaging services as an essential part of modern communications. An attempt to level the playing field between online media and offline traditional media is a regressive step that doesn’t bode well for a nascent yet flourishing independent media that’s emerging as a crucial voice in India’s democracy,” Mishi Choudhary, a technology lawyer said in a statement.

“In the heap of controversies that have erupted in the recent past surrounding social media intermediaries and content sharing platforms, there was an urgent need for regulatory action. The Rules have a broad brushed approach imposing significant obligations on intermediaries, including social media platforms, media sharing websites, blogs, etc. Though the Rules are well-intentioned, what remains to be seen is how these are brought into action. Misuse of similar legal powers, as has been envisaged under the Rules, by authorities in the past has made civil society sit up and look at these Rules with a microscope,”Supratim Chakraborty, Partner at Khaitan & Co said in a statement.

“The absence of Upload Filter requirements for Intermediaries and the self-censorship for OTT platforms, does make me feel heartened that the government did make a note of stakeholder opinion while framing The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (2021 Rules); though elements of traceability, local address requirement and 24-take down will surely put pressure on social media intermediaries,” Sajai Singh, Partner, J Sagar Associates said in a statement.

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