Online collaboration and messaging tools such as Slack, Microsoft Teams, Flock, Jive, and several others—used predominantly by businesses for internal communications—are likely to be affected by India’s new Intermediary Guidelines Rules, which essentially treat business messaging tools the same way as they treat a platform like Facebook or Twitter. The business messaging tools will presumably be treated as “social media intermediaries”; those large enough will be treated “significant social media intermediaries”, which have additional compliance requirements.
Why this matters: Even though the rules place the same conditions on Slack and Facebook, for instance, there are fundamental differences between the two — they key one being that the former is not designed for mass public outreach. By design, a user of Facebook or Twitter can potentially reach all the users on the respective platforms. Even WhatsApp, while not strictly similar to Facebook or Twitter, still allows for messages to be forwarded, a feature that is key for the product. A Slack or Microsoft Teams are not built the same way.
This issue assumes significance considering how dependent millions of Indians in the workforce have become on business communication products such as Slack and Microsoft Teams due to work-from-home during the COVID19 pandemic.
A bit of context: The IT Rules define “social media intermediary” as “an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”.
This definition, experts argue, is quite broad, and would include business-oriented applications and products, though they don’t necessarily function like traditional social media companies like Facebook or Twitter.
Additionally, social media intermediaries that have more than 5 million registered users in India will be considered “significant social media intermediaries”, who have an additional set of compliances — including enabling traceability of originator on messages, deploying automated content moderation tools, appointing nodal officers who can coordinate 24×7 with law enforcement and so on. (For more details on this, read our summary of the IT Rules with respect to intermediaries)
Should business communications be treated like social media?
Slack or Microsoft Teams is not the same as Facebook or Twitter, said Rahul Matthan, partner at law firm Trilegal. For instance, if Slack has more than 5 million users in India, it would indeed be considered a “significant social media intermediary”, however, that doesn’t necessarily portray the complete picture.
“[I]f there are more than 5 million users on Slack, it would fall into the category of [significant social media intermediaries]. I am not saying that’s how the regulations need to be read, but if you run the logic, as a user of Twitter you can reach 5 million people. But as a user of Slack, you can only reach, at best, 10,000 or 20,000 people in your company. The fact that the messaging service has more than 5 million people connected to it is slightly different in the Slack or Microsoft Teams context, as opposed to Twitter. If you are one user of Twitter, you can potentially connect to all users. Whereas on Slack, you can at best 10,000 users in that domain” — Rahul Matthan, partner, Trilegal (emphasis ours)
Messages can’t be propagated outside group: Explaining further with Slack’s example, Matthan said that messages on the platform cannot reach everyone, and are confined to a particular channel, group or domain a person belongs to. “Slack creates confined closed user groups which are confined to the enterprise. In my mind, that is a distinction. It doesn’t serve Slack’s business model to enable company-to-company chat or between groups of people. Should there be a distinction? Perhaps more clarity is needed in those lines,” he said.
‘Business communication products unlikely to be abused’
Bhavin Turakhia, founder and CEO of Flock — a business messaging application that directly competes with Microsoft and Slack — said that the Flock (and products like it) aren’t as ripe for abuse as Facebook or Twitter since they are not free to use. He said that the issues the IT Rules are trying to address exist on social media products that are free to use, and not on those that are bought.
“[M]ost of the abuse that that [the IT Rules] are intended to address exists in free social media products. Anybody can go to WhatsApp or Facebook and use it and because it’s free it is sort of easy to abuse it. With Flock, we have been in operation for five years, and until today we haven’t received even one single law enforcement agency equiry in our life. Because it is a paid product […] You’re not going to pay for a product with the intent to abuse it.” — Bhavin Turakhia, founder and CEO or Flock
‘But compliance won’t be difficult right now’: However, Turakhia said that complying with the Rules won’t be too onerous on Flock. While he did not specify how many users Flock has in India, he said that Flock would be treated as a “social media intermediary” (not more than 5 million users). “We don’t see any significant impact to us since we are not significant social media intermediaries,” he said. Turakhia said that Flock already largely complies with the due diligence prescribed to social media intermediaries in the IT Rules, such as having a grievance redressal mechanism and so on.
In fact, Turakhia said, compliance wouldn’t be too difficult even when Flock becomes a “significant social media intermediary in the future.
“It’s not significantly more onerous than what [the European Union’s] GDPR imposes on us. We had to build a ton of features and capabilities — different ones, by the way. Traceability by default exists on Flock, we are not an E2E platform, we are an encrypted platform. We’re fully secure, we have to provide search capabilities to out customers. It’s not necessarily impose a significant burden.” — Bhavin Turakhia, founder and CEO or Flock
Caught in the storm
Gurshabad Grover, senior researcher at the Centre for Internet and Society (CIS), termed business messaging products as “collateral damage” of the IT Rules. He said that Slack or products like it would have to comply with IT Rules even though that might not have been the government’s intention in the first place.
“Most of the obligations are on significant social media intermediaries. But of course, let’s consider something like Slack which is messaging. Let’s say Slack is notified as a significant social media intermediary, then it will be legally bound to implement the traceability mandate also. In that case, it doesn’t make sense for Slack to implement it, and I don’t think it is the target of the government, but they will have to implement it the way others would […] Clearly [such companies] are collateral damage in the government’s quest to control what are actually social media intermediaries.” — Gurshabad Grover, senior researcher, Centre for Internet and Society (CIS) [emphasis ours]
Matthan too agreed with the idea that regulating business messaging products were an unintended consequence of the IT Rules. “I would say there are many sorts of company that [the IT Rules] is not intended to target. You think of entities like Github, which is a repository of code. It’s not doing social media, though as part of the code, there is discussion between people who are uploading the code and there is a sort of chat, but that is very focussed,” he said.
What should be done now? ‘Clarify the definition’
Narrow down the definition: Grover agreed with the notion, and called for narrowing the definition of “social media intermediary”. “The definition of social media intermediary is super broad, I think that’s the problem here. I think they should push to narrow the definition. Legally, speaking, currently they are bound to follow all obligations on significant social media intermediaries,” he said.
Affected entities should ask questions: At this point of time, questions need to be asked, said Matthan. “When something like this, the next effort is for all the entities that are collateral damage to this to wake up and ask questions of the government. And through a bunch of different processes, the government will clarify,” he said.
In fact, readers should note that a leaked version of the IT Rules had excluded from the definition of “social media intermediaries” entities that enable “commercial or business oriented transactions”, which could have presumably kept business messaging products off the hook. This exclusion was missing in the final version.
When asked about exclusion, Flock’s Turakhia said it would have been ideal if it still existed. “That exclusion makes sense. I personally think an exception that is appropriately designed would certainly make sense. So we would welcome any industry process or body to take up this case and make sure the interests of businesses that are providing business communications are represented appropriately and that exclusion would be welcome,” he said.
Matthan too was willing to give the government the benefit of the doubt. He said that governing Slack or products like it might never have been the government’s intention.
“These are new areas and it is challenging to come up with legal language that fully covers everything and fully excludes what needs to be excluded. It’s a big challenge. We are bound to see genuinely unintentional inclusions of technology” — Rahul Matthan, partner, Trilegal
MediaNama has reached out to both Microsoft and Slack for comment on the IT Rules. We will update this post when we receive a response from them.
*Headline was updated on March 4. Originally published on March 3.