By Milind Yadav
Recently, the Joint Parliamentary Committee (“JPC” or “the committee”) published its report on the Personal Data Protection Bill, 2019 (“the report”) which takes a comprehensive approach by consulting experts to make recommendations for the Indian data protection framework. Though the mandate of the committee was to evaluate and analyse the concerns related to data privacy and protection, the JPC has also been critical of the responsibility of social media companies for the content posted on their platforms. Recommendation 6 (“the recommendation”) of the report makes critical remarks about the role of these social media companies to influence public order and suggests that these so-called intermediaries must be seen as media platforms that actively decide which content is to be shown to the readers. It is widely argued (Bar and Bench, The Print, National Herald, News 18) that the JPC seeks to discard the intermediary status of these social media platforms that have been statutorily granted to them. However, I argue that the recommendation by the committee is harmonious with the existing law, and only constructively builds on the existing framework for these platforms.
Popular view 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 accountable for the content posted on their platforms, which is against the safe harbour granted to them under Section 79 of the IT Act. More so, as also noted in Google India vs. Visakha, the 2009 amendment of the IT Act expands the legal immunity beyond the provisions of the Act, which reflects a ‘pro-intermediary’ stance by the IT Act. Before 2009, the legal immunity that section 79 granted was only limited to the provisions of the Act. The 2009 amendment extended that immunity to other prevailing laws as well. The popular view argues that the committee recommends taking away this legal immunity from social media companies based on the committee’s remarks that the IT Act has not been able to keep pace with changing social media ecosystem [Para 220.127.116.11 of the report].
However, it should be noted that the recommendation by the committee is only for the social media platforms that do not act as intermediaries. Though Clause 28(5) of the JPC’s Data Protection Bill which gave a comprehensive definition of an intermediary has been omitted in the published report (Page 214 of the Report), Recommendation 6 argues that the platforms that have the ability to select the receiver of the content and control the access to content posted on the platform should not be considered intermediaries. The committee does not intend to dilute or discard the safe harbour granted to the ‘real’ intermediaries in the IT Act. Instead, it only seeks to differentiate “social media platforms” from other intermediaries because in its view, “social media platforms” are similar to other content publishers like print and electronic media.
Understanding “Intermediary”: A harmonious interpretation
The interpretation of ‘intermediaries’ by the committee is similar to what has been defined in the IT Act and the Information Technology Rules, 2021 (“IT Rules”). Section 79 of the IT Act states that an intermediary shall not be liable for third-party information on their platform if the intermediary only provides the platform for the communication and does not select the receiver of the transmission or modify its content. The intermediary status could be revoked if the intermediary conspires, abets, or induces unlawful activities. The intermediaries also need to expeditiously remove any content that incites unlawful acts, upon receiving actual knowledge.
While the IT Rules impose additional responsibilities on these platforms to protect their intermediary status, they are fundamentally similar to the principal Act. Rule 2(1)(w) of the Rules defines intermediary as one that primarily or solely provides their platform for user interaction. Rule 3(1)(d) of the Rules requires intermediaries to remove any content that contains unlawful information or disrupts public order, upon receiving actual knowledge. In line with both the IT Act and the IT Rules, the JPC recommends that intermediaries that select receivers of content or exercise control to modify the content should be seen as publishers and not intermediaries [Para 18.104.22.168 of the report].
Analysing Recommendation 6: Difference from the existing law
An important aspect arises in the difference of approach that the IT Rules and the JPC’s recommendation take with respect to the social media platforms. Part II of the IT Rules that concerns itself with due diligence and grievance redressal of intermediaries takes a wider approach as it does not limit itself to social media intermediaries. It focuses on informing users about the rules and regulations of posting content on such platforms and expeditiously removing content that is against them by devising a redressal mechanism that will be controlled by the intermediaries themselves. More importantly, this structure of the IT Rules suggests that the drafters seek these intermediaries to take the responsibility of removing the content that is against their policies but without holding them absolutely liable. The Rules do not intend to hold these intermediaries liable for the user content on their platform as it is silent on the liability of these platforms, and identifies users as a separate individual identity that have no direct nexus with the intermediary, apart from using their platform for communication and posting content.
Recommendation 6, merely takes the discourse forward by engaging with the responsibility and accountability of social media platforms that are not intermediaries. The issue with the existing law is that it does not clarify the legislative intent to deal with non-intermediary social media platforms, including platforms that are misusing their intermediary status. While Rule 7 of the IT Rules mentions that the intermediaries that do not follow the stated rules will lose intermediary status granted under the IT Act, it is still silent on the responsibility and degree of scrutiny on such platforms. JPC’s recommendation begins to fill that void by suggesting that social media platforms that have traditionally been considered “intermediaries” cannot continue to automatically avail that status because they fail to satisfy the requirements of section 79 of the IT Act.
The JPC recommends that such platforms that do not constitute intermediaries must be held accountable for content posted on their platform because they exercise control over the content. Further, the liability should be more when the content is from unverified accounts. This is because there is ample evidence (in the form of instances and investigations) that these platforms used their algorithms to manipulate public order. Further, the committee thinks that these platforms also lack self-regulation.
So, the fact that the committee takes a ‘heavy-handed’ approach on the social media platforms is because they suspect that these platforms use their algorithmic power to manipulate the content received by the users for varied self-interest, and the platforms indulging in such actions should be held accountable and responsible for the content on their platforms and must not be given the safe harbour. As earlier noted, these recommendations are only for platforms that are functioning more than just an intermediary but seek similar legal immunity as is provided to the intermediaries under the existing law. The global instances reflect that these platforms have failed to regulate themselves, and this has caused a socio-humanitarian crisis on multiple occasions. The recommendation attempts to curb or prevent such instances in India, and it is in the larger public good that social media platforms that operate more than as an intermediary, take charge of the content on their platform.
Milind Yadav is a penultimate year student at Jindal Global Law School. Views expressed are personal and do not necessarily reflect the views of MediaNama.
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