New law for social media companies in the works
The Union government is considering bringing in a separate law to make social media companies accountable for what they publish as it looks to revise definitions of what constitutes intermediaries and social media firms, people familiar with the matter said.
The moves comes at a time when a recent executive move -- the amendments to the Information Technology Rules notified this year -- has been put on hold by orders from several courts. Among the grounds on which the new rules have been challenged, and stayed, are that they do not have adequate legislative basis to mandate the kind of additional liabilities they lay down.
“There are laws across the globe that govern how social media functions,” a government official said on the condition of anonymity. “There is still uncertainty (on the new law); it may be a different Act or be introduced as an amendment.”
The rules in February, among other guidelines, required social media platforms to appoint new grievance redressal officers and release monthly compliance reports, as well as made their “safe harbour” protections conditional upon their adherence to the new requirements. Safe harbour provisions, which exist in the parent IT Act, protect companies from liability for what their users post.
According to the person cited above, the government is looking at the European model to formulate the new law, including the Digital Services Act submitted by the European Commission in December 2020. “The guidelines will depend on the Personal Data Protection Bill,” this person said.
DSA spells out additional rights for users -- such as allowing them to report illegal content -- and makes it mandatory for social media companies to adhere to new transparency mandates regarding their content moderation practices.
The proposed law, however, does not appear to treat social media companies as publishers -- a step the Indian government is keen on via the Data Protection bill, which at present is being studied by a joint parliamentary committee (JPC).
The JPC has been looking into the draft law since 2019 and has been given several deadline extensions — the latest being due to a change in several members, including the chairperson, after former head Meenakshi Lekhi was inducted as a Union minister. The report drafted at the time was yet to be circulated for final inputs by members despite their demands.
The report proposes to treat social media platforms as publishers and to add back the condition of “just, fair, reasonable and proportionate” in Section 35 of the proposed amendments to the Personal Data Protection Bill, which deals with exemptions that the government can claim in accessing personal data. The Committee is now working to draw up a new report.
The person quoted above said that the proposed changes will be put up for public consultation. “Definitions need to be revised for what constitutes a social media platform and an intermediary,” the person said.
According to Supreme Court lawyer N S Nappinai, who is also the founder of Cyber Saathi, a non-governmental organisation working to spread awareness on cyber threats, the issue that will be crucial is what exactly the government bring in. “It’s not a bad idea at all,” she said, on the proposed law. “We can’t club intermediaries of different kinds in one box; this should be able to address specific issues concerning social media platforms.”
She added that the new law must go beyond content moderation. “There are very strong proponents of treating social media as publishers, but one needs to be careful.”