Draft rules on social media intermediaries: Facebook says will need to study in detail

Reacting to the new draft Intermediary Rules 2021, Facebook has said it will need to study them in detail. The new draft rules which were announced by the government earlier today will impact social media companies, messaging apps, online intermediaries, OTT (Over the top) content platforms and digital media publishers.

“We have always been clear as a company that we welcome regulations that set guidelines for addressing today’s toughest challenges on the Internet. Facebook is committed to people’s ability to freely and safely express themselves on our platforms. The details of rules like these matter and we will carefully study the new rules that were just published,” a Facebook spokesperson said.

“We acknowledge and appreciate the recognition from the Minister on the positive contributions of social media to the country. Facebook is an ally for India and the agenda of user safety and security is a critical one for our platforms. We will continue to work to ensure that our platforms play an enabling role in fuelling the exciting digital transformation of India,” it adds.

It should be noted that the roles make for a distinction between a significant and regular social media intermediary, though this will be determined on the basis of number of users. That number is yet to be determined. More significantly, the rules call for tracing the ‘originator’ of the message or tweet if required under certain circumstances.

This will present new problems for Facebook’s WhatsApp messenger, which has close to 53 crore users in India. WhatsApp is end-to-end encrypted (E2E) and does not keep a track of who started a message. That’s because E2E encryption ensures that not even WhatsApp knows when two people are sending a message or what was shared in the message. The government insists it does not wish to read the contents of the message, but only wants to know the ‘originator’.

According to an official press release, “Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

Intermediary shall not be required to disclose the contents of any message or any other information to the first originator, adds the statement.

“In the heap of controversies that have erupted in the recent past surrounding social media intermediaries and content sharing platforms, there was an urgent need for regulatory action. The Rules have a broad brushed approach imposing significant obligations on intermediaries, including social media platforms, media sharing websites, blogs, etc. Though the Rules are well-intentioned, what remains to be seen is how these are brought into action. Misuse of similar legal powers, as has been envisaged under the Rules, by authorities in the past has made civil society sit up and look at these Rules with a microscope,”Supratim Chakraborty, Partner at Khaitan & Co said in a statement.

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