It is the provision of initiating criminal liability for non-compliance of any component of the new Information Technology (IT) guidelines – which came into force from May 26 – which has led some social media corporations to move court, difficult either particular mandates or disputing that some of their services can be categorised as social media intermediary.
The penal provision in the earlier IT guidelines with regard to imprisonment was restricted, in the sense that if social media firms failed to take away/block/monitor/intercept content if directed by the government below Section 69A of the IT Act, they could shed legal immunity below Section 79, and below Section 69 could face imprisonment for a term which could extend to seven years and there could also be a fine.
However, the new guidelines are all encompassing, have introduced new mandates, and non-observance of any of the guidelines can lead to initiation of criminal action top to imprisonment, which can be a life term also. A new Rule 7 has been inserted dealing with the non-observance of the guidelines, which 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”.
“What action could be taken against an intermediary if it failed to comply with the rules was a grey area in the earlier law. Now, it has been made crystal clear that criminal action can be initiated,” says Pavan Duggal, cyberlaw professional and a Supreme Court advocate. “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,” Duggal added, stating that merely difficult the law in the court will not be of use unless the court stays the law.
Section 79 of the IT Act gives social media corporations intermediary status, which gives them exemptions and particular immunity from liabilities for any third-party content and information hosted by them.
On May 25, a day ahead of the new guidelines came into force, common messaging platform WhatsApp was the 1st to challenge in the Delhi High Court a clause of the new intermediary suggestions, which demands it to provide the 1st originator of what is deemed as mischievous messages by the government. The business stated in its petition that the new requirement below Rule 4(2) is ‘unconstitutional’, ‘illegal’, and ‘ultra vires the IT Act’.
Rule 4(2) is a new mandate and singularly impacts WhatsApp. The business has lengthy resisted the inclusion of this clause with some assistance from civil society activists, on the pretext that it forces it “to break end-to-end encryption on its messaging service, as well as the privacy principles underlying it, and infringes upon the fundamental rights to privacy and free speech of the hundreds of millions of citizens using WhatsApp to communicate privately and securely”.
On June 2, Google LLC became the second business to move the division bench of the Delhi HC against the order of its single judge, which in an April 20 order, directed it to take away morphed pornographic images of a lady on particular pornographic internet websites, inside 24 hours of getting the order. The order stated that failure on the component of Google to take away the objectionable content from all the internet sites worldwide would lead the business to shed the immunity that it enjoys as an intermediary below Section 79(1) of the IT Act and its officers would be liable for action as mandated by Section 85 of the IT Act.
The complaint of the lady was that her images from Facebook and Instagram had been taken by offenders, morphed and posted on particular pornographic internet sites.
In its appeal ahead of the division bench, Google has contended that it was erroneous on the component of the single judge to refer to its search engine as a social intermediary as it was an aggregator. Further, it stated that it can take away the objectionable content from India, but it might not be feasible for it to deploy automated tools to do the very same globally.
Though the Google case is a year old, the single judge applied the provisions of the new IT guidelines though pronouncing the order in April this year. The new IT guidelines had been notified on February 25 but came into force from May 26.
Microblogging internet site Twitter, which has so far not complied with the new guidelines in the sense that it has not appointed a chief compliance officer and a resident Indian business employees as grievance officer and a nodal get in touch with individual, runs the danger of losing its intermediary status and face criminal action.
The government, on June 5 sent a notice to Twitter stating it was providing the microblogging internet site one last opportunity to comply by creating the appointments as per law or else the business could shed exemption from liability as an intermediary, and action against it can be initiated below Rule 7 of the new guidelines.
On May 27, Twitter, by way of a statement, had raised issues about its compliance officer getting made criminally liable for content on the platform, the needs for proactive monitoring and the blanket authority to seek information and facts about its customers. It stated this represents unsafe overreach that is inconsistent with open, democratic principles. However, the government, though denying Twitter’s issues, accused it of undermining the country’s laws that aim at defending it from criminal liability.