The new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, also known as the new IT Rules 2021, come into effect from today. This is after a three-month window was given to large social media networks in India to comply with these guidelines, which were first released in February. The new rules clearly define large social media platforms as those having more than 50 lakh registered users, which means Facebook, Twitter, Instagram and the made in India Koo app, all get categorized as large social media platforms. The focus of these new rules for social media includes the requirement to appoint a resident grievance officer as part of a larger grievance redressal mechanism, active monitoring of content on the platform, monthly compliance reports for Indian users and self-regulation mechanisms.
Yet, as we sailed towards May 26 and the implementation of the new IT Rules 2021, there has been a sense of panic on social media as users are wondering if not complying with the new IT Rules 2021 would lead to Facebook and Twitter getting banned in India. This is where the subsection 1 of the section 79 of the IT Rules 2021 comes into play. This has been clearly mentioned in the new IT Rules 2021. “When an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable for 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”. The section 79 specifically gives digital media platforms such as Facebook, Twitter, YouTube and WhatsApp immunity in a way against liability for posts made on their networks, third party information or data.
If social media companies do not comply with the new IT Rules 2021, it has been clearly stated that this legal immunity will be withdrawn and digital media platforms will be part of the legal proceedings, if any. Sub-section 1 of section 79 of the IT Act says, “Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.” The sub-sections 2 and 3 state that the legal immunity provisions apply if “the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted” and the intermediary does not initiate the transmission, select the receiver of the transmission or select and modify the information contained in any transmission.
What this basically means that while the new IT Rules 2021 come into force from today after a three-month window for compliance, social media apps including Facebook and Twitter could at best face a rap on the knuckles for non-compliance with the new rules, including grievance redressal and lose the legal immunity with regards to any legal proceedings in India, which will hold them responsible for content that may be shared or posted on their platforms. The new IT Rules 2021 do not mention any ban for non-compliance.