By Milind Yadav
Recently, the Joint Parliamentary Committee (“JPC” or “the Committee”) released its Report on the Personal Data Protection Bill, 2019 (“the Report”) which takes a holistic approach by consulting experts to make recommendations for the Indian data protection framework. . Although the committee’s mandate was to assess and analyze privacy and data protection concerns, the CPM also criticized the liability of social media companies for content posted on their platforms. Recommendation 6 (“the recommendation”) of the report makes critical remarks on the role of these social media companies in influencing public order and suggests that these so-called intermediaries should be seen as media platforms that actively decide what content should be shown to readers. It is widely argued (Bar and Bench, The Print, National Herald, News 18) that the JPC is seeking to oust the intermediary status of these social media platforms that has been statutorily granted to them. However, I submit that the committee’s recommendation is consistent with existing law and only constructively builds on the existing framework for these platforms.
Popular Opinion and Scope of Recommendation 6
The argument that the JPC is against the intermediary status of these platforms is based on the fact that they want to hold them responsible for the content published on their platforms, which goes against the safe harbor that is theirs. granted under article 79 of the computer law. More so, as also indicated in Google India vs Visakha, the 2009 Amendment to the Information Technology Act extends legal immunity beyond the provisions of the Act, reflecting a ‘pro-intermediate’ position of the Information Technology Act . Prior to 2009, the legal immunity granted by Section 79 was limited only to the provisions of the law. The 2009 amendment also extended this immunity to other applicable laws. Popular opinion argues that the committee recommends removing this legal immunity from social media companies based on the committee’s remarks that IT law has not been able to keep pace with the changing ecosystem. social media. [Para 220.127.116.11 of the report].
However, it should be noted that the committee’s recommendation relates only to social media platforms that do not act as intermediaries. Although Clause 28(5) of the JPC Data Protection Bill, which gave a full definition of an intermediary, was omitted from the published report (page 214 of the report), Recommendation 6 argues that platforms that have the ability to select the recipient of content and control access to content posted on the platform should not be considered intermediaries. The committee does not intend to dilute or displace the safe harbor afforded to “true” intermediaries in the IT Act. Instead, he only seeks to differentiate “social media platforms” from other intermediaries because, in his view, “social media platforms” are similar to other content publishers such as print and electronic media.
Understanding “Intermediate”: a harmonious interpretation
The Committee’s interpretation of ‘intermediaries’ is similar to what has been set out in the IT Act and Information Technology Rules, 2021 (‘IT Rules’). Article 79 of the IT Law states that an intermediary is not responsible for third party information on its platform if the intermediary only provides the platform for the communication and does not select the recipient of the transmission or modify its contents. Intermediary status may be revoked if the intermediary conspires, encourages or induces illegal activities. Intermediaries must also promptly remove any content that incites illegal acts, as soon as they become aware of it.
Although the IT Rules impose additional responsibilities on these platforms to protect their intermediary status, they are fundamentally similar to the Main Law. Rule 2(1)(w) of the Rules defines an intermediary as one who primarily or solely provides its platform for user interaction. Rule 3(1)(d) of the Rules requires intermediaries to remove any content that contains information that is illegal or disrupts public order, as soon as they actually become aware of it. In accordance with both the IT law and IT rules, the JPC recommends that intermediaries who select the recipients of content or exercise control to modify the content be considered publishers and not intermediaries. [Para 18.104.22.168 of the report].
Analysis of Recommendation 6: Difference from existing law
An important aspect stems from the difference in approach between the IT rules and the CPM recommendation with regard to social media platforms. Part II of the IT Rules which deals with Intermediary Due Diligence and Grievance Redress takes a broader approach as it is not limited to social media intermediaries. It aims to inform users of the rules and regulations related to posting content on these platforms and to quickly remove content that is contrary to them by designing an appeal mechanism that will be controlled by the intermediaries themselves. More importantly, this structure of IT rules suggests that editors are asking these intermediaries to take responsibility for removing content that violates their policies, but without holding them absolutely accountable. The Rules do not intend to hold such intermediaries liable for user content on their platform as they are silent on the liability of such platforms and identify users as a separate individual identity which has no no direct link with the intermediary, apart from the use of their platform. for communication and publishing content.
Recommendation 6 only advances the discourse by engaging the responsibility and accountability of social media platforms that are not intermediaries. The problem with the current law is that it does not clarify the legislative intent to deal with non-intermediary social media platforms, including platforms that abuse their intermediary status. Although Rule 7 of the IT Rules mentions that intermediaries who do not comply with the rules set out will lose the status of intermediary granted under the IT law, it is silent on the responsibility and the degree of control over these platforms. JPC’s recommendation begins to fill this void by suggesting that social media platforms that have traditionally been considered “intermediaries” cannot continue to automatically claim this status because they do not meet the requirements of Article 79. information technology law.
The CPM recommends that these platforms that are not intermediaries be held responsible for the content published on their platform because they exercise control over the content. Also, liability should be greater when the content comes from unverified accounts. Indeed, there is ample evidence (in the form of proceedings and investigations) that these platforms have used their algorithms to manipulate public order. Moreover, the committee believes that these platforms also lack self-regulation.
Thus, the fact that the committee takes a “tough” approach on social media platforms is due to the fact that it suspects that these platforms use their algorithmic power to manipulate the content received by users for various personal interests, and platforms engaging in such actions should be held responsible for the content of their platforms and should not be shielded. As noted earlier, these recommendations only apply to platforms that operate as more than a mere intermediary but seek legal immunity similar to that afforded to intermediaries under applicable law. Global bodies reflect that these platforms have failed to regulate themselves, which has caused a socio-humanitarian crisis on several occasions. The recommendation attempts to curb or prevent such instances in India, and it is in the public interest that social media platforms that operate more than as intermediaries take ownership of their platform content.
Milind Yadav is a penultimate year student at Jindal Global Law School. The opinions expressed are personal and do not necessarily reflect the opinions of MediaNama.
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