Context: Recently, Facebook has clarified that it aims to comply with the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which have come into effect.

• The Information Technology Rules, 2021 have now come into force. Social Media companies will lose their protection under Section 79 of the IT Act if they fail to comply with new rules.

Background

• The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 came into force on 26th May 2021. 
• They aim to regulate the flow of information over social media, digital news media, and over-the-top (OTT) content providers.

Traceability Provision

• It requires intermediaries to enable identification of the first originator of information on their platforms.
• Rule 4(2) of the Intermediary Rules states that a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order or an order passed by a competent authority under the Information and Technology (IT) Act 2000.

About the new IT rules

• It mandates all social media platforms to set up a grievances redressal and compliance mechanism. This includes appointing a resident grievance officer, chief compliance officer, and a nodal contact person.
• Chief Compliance Officer shall be responsible for ensuring compliance with the Act and Rules.
• Nodal Contact Person will do 24×7 coordination with law enforcement agencies.
• Resident Grievance Officer shall receive and resolve complaints from users. The officer must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt.
• The platforms must submit monthly reports on complaints received from users and actions taken. 
• Further, the platforms providing the feature of instant messaging need to track the first originator of a message.
• However, non-compliance with new rules would take away the protection granted to social media intermediaries under Section 79 of the IT Act.

What is Section 79 of the IT Act?

• It states that any intermediary shall not be held legally or otherwise liable for any third-party information, data, or communication link made available or hosted on its platform.

The protection is available if the intermediary doesn’t:

• initiate the transmission of the message in question, 
• select the receiver of the transmitted message 
• modify any information contained in the transmission
• tamper with any evidence of the concerned messages

Further, the intermediary wouldn’t be granted protection if it does not immediately disable access to the material under question as per the government order.
Genesis of Section 79

• The need to provide protection to intermediaries from actions of third parties came into focus following a police case in 2004. 
• Under this, the chief executive officer of bazee.com and his associates were booked for allowing the auctioning of pornographic material on their website. They were held guilty under Section 85 of the IT Act. 
• The section says that when a company commits an offense under the IT Act, all its executives should be held liable and proceeded against.
• However, this decision was overturned by SC in 2012. The court held that the website and its executives could not be held accountable since they were not directly involved in the said transaction. After this, the IT Act was amended to introduce Section 79.

Global norms on safe harbour protection for social media intermediaries

• Section 230 of the 1996 U.S Communications Decency Act provides internet companies a safe harbor from content posted by users over them.
• The section states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”
• This has enabled companies such as Facebook, Twitter, and Google to become global conglomerates without any fear of litigation.

What’s Next?

• The prominent platforms including Facebook, Twitter, etc. have still not complied with the new rules. They have not appointed concerned officers nor have submitted the monthly reports to the government. 
• This means the executives of these social media platforms no longer enjoy the protection of Section 79. They could be held liable for any social media post without any fault on their part.