IT rules: Social media firms can now be sued by users for offensive content

Though some social media firms like Facebook and Google have said that they aim to comply with the new laws, have already met some and are engaging with the government on other aspects, lawyers said that such partial compliance doesn’t guarantee the immunity provided otherwise under Section 79.

With the new rules for intermediaries that came into force on Wednesday, social media firms now run the risk of facing increased litigation from various parties, particularly users’ and social activist groups on any content which is perceived as offensive.

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Majority of the players have not met compliance with the new rules so far and further delays can make their senior management vulnerable to facing criminal charges in cases of alleged violation of rules. An imprisonment of up to seven years as part of penal provisions cannot be ruled out.

This is because non-compliance with the rules would result in these social media companies losing their intermediary status, which provides them exemptions and certain immunity from liabilities for any third-party content and data hosted by them. Once this happens, they could be liable for criminal action, in case of complaints. The earlier version of the Information Technology law did not have provision for criminal liability.

Microblogging site, Twitter which has been directed by the government to remove the tag “Manipulated Media” from tweets by BJP leaders in an alleged Congress toolkit matter, referred to such fears in its statement on Thursday. “Right now, we are concerned by recent events regarding our employees in India and the potential threat to freedom of expression for the people we serve…We, alongside many in civil society in India and around the world, have concerns with regards to the use of intimidation tactics by the police in response to enforcement of our global terms of service, as well as with core elements of the new IT rules,” it said.

Rule 7 which deals with the non-observance of the rules 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”.

“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,” cyber law expert Pawan Duggal said. He said that mere challenging the law in the court as WhatsApp has done, will not be of use unless the court stays the law.

Official sources said that the government may not be vindictive and the social media firms can always engage with it, but the laws empower individual users and users’ group also to lodge complaints and file cases and in such cases the government may not be able to do much.

Though some social media firms like Facebook and Google have said that they aim to comply with the new laws, have already met some and are engaging with the government on other aspects, lawyers said that such partial compliance doesn’t guarantee the immunity provided otherwise under Section 79.

The new intermediary rules, which were notified on February 25, are aimed at regulating all social media intermediaries like Twitter, Facebook, Instagram, Google, YouTube, etc, as as well as over-the-top platforms like Netflix, Amazon Prime Video, and stand-alone digital media outlets. While the guidelines relating to intermediaries was already in force from earlier times, through the new rules the government has tightened some clauses such as reducing the time provided to the platforms to remove what is deemed by it as unlawful content under Section 69A of the IT Act. Such content now needs to be removed within 36 hours of being flagged against 72 hours earlier.

Further, these platforms would now have to appoint grievance redressal officers in the country and resolve consumer grievances within a specific time period, as well as have designated nodal officers for coordination with the government over law and order matters. For messaging platforms like WhatsApp, a new requirement has been inserted which requires it to provide the first originator of what is deemed as mischievous messages by government which may lead to law and order problem or threatens the country’s sovereignty, integrity, or friendly relations with neighbours.