Intermediary Guidelines and Digital Media Ethics Code Explained

On 25 May 2021, social media users went into a frenzy as speculations of digital platforms being banned the following day started making rounds. The Intermediary Guidelines and Digital Media Ethics Code introduced by the Ministry of Electronics and Information Technology (MeitY) was at the root of this confusion. MeitY gave social media platforms and digital news outlets three months to comply with the rules announced in February. The rules came into effect on 26 May and since many platforms hadn’t stated their compliance, it caused panic among people. Here’s a breakdown of the guidelines and the consequences of non-compliance.

What are the requirements of the guidelines?

The guidelines required all social media platforms to set up a grievance redressal and compliance mechanism by appointing a resident grievance officer, a chief compliance officer (CCO) and a nodal contact person. MeitY also asked that platforms submit monthly reports on complaints received from users and action(s) taken. The final requirement was that instant messaging apps (such as WhatsApp) make provisions for tracking the first originator of a message.

Upon failure to comply with any of the given requirements, platforms would effectively lose the indemnity provided under Section 79 of the Information Technology Act.

What is Section 79?

Section 79 of the IT Act states, '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. This protection shall be applicable if said intermediary does not in any way, initiate the transmission of the message in question, select the receiver of the transmitted message and does not modify any information contained in the transmission.'

An intermediary is any service provider that transmits, hosts and publishes user content without exercising editorial control over the content. This could be an ISP, a social media platform or any internet service that allows one to post, upload and publish.

Section 79 implies that as long as a platform acts as a messenger without interfering, it will not face any legal prosecution brought due to the message being transmitted. This protection is not granted if the intermediary does not immediately disable access to the material under question, despite being informed or notified by government agencies, to prevent the intermediary from tampering with any evidence of these messages or content.

Consequences of Non-Compliance

Though intermediaries such as Twitter, Instagram and Facebook have not met all the requirements mentioned above, they will continue to function normally. Users will continue having access to said platforms and will be able to share content. But if a user were to post something that violates the local law, it is within the rights of the law enforcement to book the executives of the company along with the person who shared the content.

According to Kazim Rizvi, this liability can be criminal in nature, resulting in the possibility of the COO serving a prison term of up to seven years.

WhatsApp has approached the Delhi HC challenging the rules stating they would have to break their end-to-end encryption policy.

Many people have questioned the underlying privacy principles of these new IT rules but only time will tell if any amendments will be made keeping user privacy and digital platforms’ interests in mind.

NOTE: This news report was originally written in 2021, at the time of the events taking place, for The Paradigm.