Deadline ends for intermediaries: What it means for social media firms?

Experts say terms of the IT Rules, 2021 would lead to severe surveillance by the government and allow it to gain knowledge of who sent what message at what point in time, undermining end-to-end encryption

Under the Intermediaries and Digital Media Rules, the social media intermediaries (firms like Twitter, Facebook, WhatsApp and Google, among others) had a host of obligations to comply with.

The government on Wednesday (May 26) wrote to social media intermediaries having 50 lakh or more users in India, to provide specific details on whether they have complied with the new IT rules. The government asked them to reply preferably by May 26 itself.

Under the Intermediaries and Digital Media Rules, the social media intermediaries (firms like Twitter, Facebook, WhatsApp and Google, among others) had a host of obligations to comply with.

The letter, signed by Rakesh Maheswari, group coordinator (Cyber Laws and e-Security), Ministry of Electronics and Information Technology, asked the firms to detail out names of the compliance officer, nodal contact person, resident grievance officer and the physical contact address in India.

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Related news: New rules for social media, OTTs; govt can seeks details of message ‘originator’

Nikhil Pahwa, digital rights activist and founder of technology portal MediaNama viewed the development as yet another pressure tactic by the government. “There’s no clarity on what immediate action would the government take on the non compliance. We will have to wait and see,” Pahwa said.

On February 25, the government issued the contentious IT Rules, 2021, and gave a three months’ deadline to comply with the regulations. That’s May 25, 2021. The compliances, experts said, were undemocratic and would lead to severe surveillance by the government.

The rules said ‘significant’ social media intermediaries must enable traceability of the “first originator” of messages. Internet experts said this would undermine end-to-end encryption and infringe upon one’s privacy and freedom of speech. The rules will allow the government to gain knowledge of who sent what message at what point in time.

This letter indicates that the government is not willing to give any additional time for them to comply with the rules. The development comes amid Facebook owned WhatsApp going to court, challenging the new rules. WhatsApp, in its petition had put forth the argument based on 2017 Supreme Court judgment that said traceability provision as unconstitutional and against people’s fundamental right.

Notably, Twitter, the micro blogging platform, which drew flak from the government after it flagged a post by a ruling party member on the toolkit issue as “manipulated media”, remained silent on the compliance.

Though there were at least six writ petitions have been filed before various high courts challenging the rules, no significant orders have been passed yet.

“Technically, there is no stay order by the courts. Nor has the government extended the deadline. And Twitter hasn’t made any declaration notifying its compliance. The consequences of which can invite liability and they may lose the status of intermediary,” Abhinav Sekhri, one of the advocates and legal counsel for Internet Freedom Foundation, a trust fighting for freedom in the digital age.

“Stricter set of regulations will be in place effectively and they will have an obligation to take down any offending content,” he said.

Under the new rules, the intermediaries will have to take down content within a stipulated time (within 36 hours where necessary). Besides, they will have to preserve the data for 180 days, even after a user has deleted their accounts.

Related news: We aim to comply, Facebook says hours before government deadline ends 

And in the case of digital media and OTT platforms, the Intermediary Rules provide that the Ministry, at the level of Secretary may, if satisfied and justifiable, issue directions for blocking of online content, without giving them an opportunity of hearing.

The rules specify that the intermediaries (social media firms) will stand to lose protection from lawsuits and criminal prosecution if they fail to adhere to the policy guidelines put in place.

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