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How the IT Rules FAQs add to the arbitrariness and confusion around the rules

After the intermediary guidelines were met with controversy, the government’s attempt to clear the air hasn’t exactly helped.

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In an attempt to "bring clarity as well as to explain the nuances of the due diligence to be followed by intermediaries," the Ministry of Electronics and Information Technology (MeitY) on November 1 published a set of Frequently Asked Questions (FAQs) on the IT Rules 2021. But the FAQs add to the arbitrariness and confusion around the rules on many fronts. Although these FAQs are not part of any legal document and should not be considered as part of official rules, they are the closest we have to standard operating procedures (SOPs) which the government said will be released at a later date. What is and what isn't a social media intermediary? Definition of social media intermediary: The IT Rules describe a 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. What's the problem here? The problem with this definition is that it is broad enough to cover various kinds of online entities that do not necessarily function like traditional social media companies. For example payment gateways that enable chat features between merchants and consumers qualify as social media intermediaries. Other unintended targets are SaaS companies like Freshworks and Zoho, business messaging products like Slack and Microsoft Teams, and edtech platforms like Byjus. We also had reports on how certain services, iMessage for example, do not have to comply with the rules even though they function similarly to other platforms that are covered. For…

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