By Aihik Sur and Nikhil Pahwa
On the day the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules 2021 came into force, the Ministry of Electronics and Information Technology asked significant social media intermediaries (SSMIs) to provide full details of the additional due diligence that they are required to comply within the rules. The authenticity of the letter (a copy of it posted below) has been confirmed to MediaNama by MEITY.
In the letter written by Rakesh Maheshwari, group coordinator of the Cyber Law division in MeitY, the ministry has asked for details of compliance to the IT Rules 2021 by the platforms, including details of the
- Chief compliance officer and contact details
- Nodal Contact Person and contact details
- Resident grievance officer and contact details
- physical contact address
The ministry also said that companies that do not consider themselves to be a SSMI, should provide the reasons for the same, and clarified that the Centre can seek any additional information within the Rules and the IT Act. It’s not clear which entities MEITY has sent these letters to.
Significant Social Media Intermediaries are entities with more than 5 million registered users, and 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 service.” This impacts entities such as WhatsApp, Facebook, Twitter, LinkedIn and YouTube, but would also impact B2B messaging services like Slack and video conferencing services like Zoom and Microsoft Teams.
Impact of Non Compliance
As per Rule 7 of the Information Technology Rules 2021, non compliance would mean that platforms would lose their intermediary status for the duration of existence of the rules. This means that they would be liable for content and posts from users, like publishers are. It’s quite clear that platforms cannot survive this liability.
Rule 7: Non-observance of Rules.—Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.
The letter written by MeitY to significant social media intermediaries confirmed to MediaNama
All Significant Social Media Intermediaries (SSMI) (Date: 26th May, 2021)
Subject: Requesting details of compliance of the new “the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021”.
Dear Sir/ Madam,
As you are aware that the Government of India has notified the Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021 on 25th February 2021 under the provisions of Information Technology (IT) Act, 2000. (http://egazette.nic.in/WriteReadData/2021/225464.pdf). These Rules supersede the erstwhile notified Information Technology (Intermediary Guidelines) Rules, 2011. Government through a separate notification has also prescribed that a social media intermediary having fifty lakh (5 million) registered users in India will be considered a Significant Social Media Intermediary (SSMI). The Part-II of the Rules broadly prescribe the due diligence to be followed by :
a. All intermediaries as defined in the IT Act, 2000.
b. Additional set of due diligence for SSMI
and are being administered by this MeitY. The additional due diligence required from SSMI have come into effect today, at the conclusion of three additional months given to SSMIs.
2. The definitions of these services/ entities are covered in the IT Act/ Rules as stated above.
3. As you including your parent company or any other subsidiary, provide a variety of services in India some of which falls within the definition of SSMIs in the context of the IT Act and the aforesaid Rules. Accordingly, as part of ascertaining the compliance to these Rules, you are requested to provide the following information:
a) Name of App./ Website/ service falling within the scope of significant social
b) The details of :
• Chief Compliance Officer and the contact details
• Nodal Contact Person and the contact details
• Resident Grievance Officer and the contact details.
• The physical contact address in India
c) Compliance status of these Rules.
5. If you are not considered as SSMI, please provide the reasons for the same including the
registered users on each of the services provided by you.
6. The Government reserves the right to seek any additional information, as may be permitted within these Rules and the IT Act.
Please confirm and share your response ASAP and preferably today itself.
Group Co-ordinator, Cyber law, MeitY
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