Section 79 of the IT Act
The section states that no intermediary shall be held responsible or otherwise liable for any data or communication links shared by the third party on their platforms. However, this protection under the act shall be applicable only if the intermediary is in any way not involved in the initiation of transmission of the messages.
Due to recent occurrences, however, this section has made its way to the most infamous newspapers and professional journals.
The government, in February 2021 had released a notification stating the amendments in the information technology (IT) laws and the new rules and regulations for the social media platforms.
Earlier, for any post uploaded through the intermediaries like Facebook, Instagram etc., the websites were not held liable for it. Their task was to only help in communication and not scrutinize and monitor the content posted by its users. It is in the essence of the passive roles of these web portals (including e-commerce, blogging platforms, search engines, etc.) that categorize them as an intermediary and provide protection under section 79. As mentioned above, the section offers them protection against being held accountable or liable for any data shared by a thirty party on their platform as they do not regulate the content being posted.
What has brought this section into the limelight is the guidelines issued by the government in 2021. The notification requires the platforms to abide by its amendments which are:
• Mandatory for the intermediaries to follow due diligence
Noncompliance with due diligence by the media can lead to their exclusion from the provision of safe harbour.
• Set up of a Grievance Redressal Mechanism
The intermediaries must set up a Grievance redressal mechanism to resolve the issues and complaints of its users. A Grievance Officer must be appointed to acknowledge the complaint within 24 hours and also fix the problem within fifteen days since it has been lodged.
• Ensuring the dignity and safety of its online users, especially women
The portals are required to remove any morphed/inappropriate image/content harming the sentiments or dignity of any individual within 24 hours of the complaint.
• Distinction of Social Media Categories
There will be a distinction of the platforms as social media and significant social media based on the number of their users.
Additional features of due diligence are also required to be followed by the powerful social media platforms.
• Appointment of – Chief Compliance Officer, Nodal Contract Person, Resident Grievance Officer, Monthly Compliance Report
• Enable the feature to track down the originator of a message. This is for identification, detection, prosecution or punishment for an offensive act.
• The platforms must mention the physical contact address on their website or/ and mobile app.
• voluntary-user verification mechanism for the user to verify their accounts.
• removal of unlawful content and giving a chance to the users to be heard.
Any noncompliance to these amendments can take the safety net of section 79 away from these portals.
The Government’s Stance :
The government’s press release accepted the empowerment that the citizens feel with the escalation of social media and other portals where they can freely practice their freedom of speech. However, it stated that it could not ignore the flip side of the same coin, for the incidents related to the violence because of the spread of fake news on these same websites and abuse on social media has also grown manifold in recent years. It thus wanted a verification or a fact check mechanism to combat these problems. It also shed light on how events related to the misuse of social media and the spread of the so-called anti-national elements have posed a problem in law enforcement agencies. Moreover, misusing the platforms to settle out the rivalries in the corporate world using unethical means has also become a common occurrence and a significant concern for businesses. According to the government, the lack of transparency and a redressal mechanism has made the users utterly reliable on the platforms. Thus, according to them, in the interest of the users, these guidelines have been issued.
The guidelines have faced much criticism since their introduction. Freedom of speech has been one of the major concerns as it is seldom that the government can halt the unlawful content without hampering people’s freedom to express their opinions.
According to The Wire, the guidelines focus on primarily a three tire regulation mechanism for the Over The Top (OTT) platforms which would eventually lead to greater censorship. Moreover, the mechanism lacks any legislative backing and will have functions similar to the Ministry of Information And Broadcasting for regulation of TV. Rule 13(4) gives the power to regulate and censor the content and block it.
The digital news media also indirectly comes under the patronage of the guidelines, and the vagueness in the definitions allow the government to use its power capriciously.
The reports also state that the subsection of (2) of Rule 5 has made it mandatory for the significant messaging app to make a provision to trace the originator of a message. This means that there would be a compromise in the encryption of the news that the platform supposedly offers and would eventually invade the privacy of its users. Breaking end-to-end encryption would put many of its users at risk as one’s information can be analyzed at a scale never thought before. This is in contradiction to section 84A that requires the central government to prescribe the methods and modes to safer encryption to make the electronic medium safer for the users.
All the platforms were provided three months to accord themselves with the new guidelines, which ended on May 25, 2021. However, the most widely used applications like Twitter and WhatsApp have yet not given their agreements.
WhatsApp has mentioned its concerns in the Delhi High Court that the new guidelines violate the Right to Freedom And Expression and Article 14. It further added that it is violative of section 79 and 69(A) of the IT Act.
The ministry has given its justification and added that noncompliance with the rules would cost them a significant liability.