India’s New Rules for Facebook, WhatsApp and Other Social Media Platforms Explained in Five Points
- Social media platforms in India, like Facebook and its branch of WhatsApp, Google’s YouTube, Twitter and others, are now facing a new set of rules and regulations that will come into effect after mid-May.
- The Indian government has established rules for physical presence, monitoring of harmful content, tracing of the first perpetrator and voluntary verification of users.
- Here are the five most important things you need to know about India’s new IT rules for social media platforms.
- The article was written by Tanu Banerjee, Ishan Johri and Garima Kedia of Khaitan & Co.
The Indian government has come up with a new set of rules and regulations to regulate social media platforms, messaging services, OTT platforms and news portals.
These regulations are called the Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media), 2021 (Rules). These rules will have to be observed even by foreign tech giants operating in India such as WhatsApp, Facebook, Twitter, Netflix, Amazon, etc.
The growth of digital media in India has been largely fueled by a moderate regulatory framework in India so far. However, given growing concerns about the information and content available on social media and OTT platforms, detailed domestic and foreign regulations for digital media from the government were imminent.
For social media platforms such as Twitter, Facebook and others, the Rules focus on issues such as fake news, fake user accounts, and the platforms’ monitoring of illegal content. Greater compliances are placed on social media platforms with a larger user base. A key provision specific to messaging services is the requirement to identify the sender of messages in the event of wrongdoing.
Important social media intermediaries – more about behavior than statistics
Social media platforms with at least 50 lakh of registered users are classified as significant social media intermediaries and are subject to maximum compliances. However, the government may require any other social media platform to also comply with the rules applicable to major social media intermediaries if the services of that platform create a significant risk to the sovereignty or integrity of the platform. India.
While the actual implementation of this remains to be seen, at this point it appears that due to user behavior alone, even the smallest social media platforms could be subject to more stringent compliance with the rules.
If you are doing business in India, you must be established in India
All major social media intermediaries are required to name:
- a chief compliance officer
- a nodal contact person
- and, a resident grievance officer
Each of the above members must be Indian residents.
The rules also require major social media intermediaries to have a physical contact address in India. This mandatory physical presence in India will have important implications for foreign players in terms of the establishment of infrastructure and the deployment of resources and taxation.
However, the absence of a compulsory registration or licensing framework for digital media companies will hopefully continue to generate interest from foreign players to locate in India.
Active monitoring of harmful content – transfer of responsibility to “intermediaries”
Unlike the 2011 Information Technology Rules (Intermediate Directives) previously applicable (2011 Rules), major social media intermediaries are now required to strive to deploy technology-based measures, including tools automated to identify information that describes rape, child sexual abuse or conduct, or information that has been previously deleted.
The rules also require the maintenance of appropriate human oversight and a periodic review of automated tools. Such active oversight by intermediaries dilutes the safe haven protection that was available to intermediaries under the 2011 rules.
User Verification – Security or Privacy Risk?
Identification of the “first sender” of the information
Courier services (with more than 50 lakh users) will be required to enable identification of the first sender of information if a court order or government order under section 69 of the Computing Act required.
Such identification of a user calls into question the end-to-end encryption offered by services such as WhatsApp, Telegram, Signal, etc. ; and whether it is practically possible for a platform to identify a user as the “first author” of malicious information.
* Tanu Banerjee is a partner, Ishan Johri is a senior partner and Garima Kedia is a partner at Khaitan & Co. law firm The opinions expressed here are personal.
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