In Big tech vs Govt on new IT law, will courts play middlemen? Here’s what experts say

The new rules were introduced to make social media platforms, which have seen a phenomenal surge in usage over the past few years in India, more accountable and responsible for the content hosted on their platform.

Large social media firms Facebook and Twitter will lose their intermediary privileges today (May 26) as they fail to comply with the new IT rules. According to experts, while the impact of this is not immediate, the situation will play out in Indian courts till the time the government and tech companies come to a compromise.

New IT rules

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code Rules), 2021, was notified on February 25. The rules mandated significant social media firms (with over 50 lakh users) to appoint key officers in India, create systems for grievance redressal and take down disturbing content within a specified time frame. These companies were given three months to comply with the rules.

However, except for Indian firm Koo, none of the companies did so as the deadline passed on May 25. Government sources had said that they could potentially lose the intermediary tag.

A Facebook spokesperson said: "We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform."

Digital intermediaries are companies like Google, Facebook and Twitter that facilitate people to interact with the internet. Losing the tag would mean being held accountable for the content posted on their platforms.

Intermediary liability

Sanjay Hegde, Senior Advocate, Supreme Court, said: “Social media companies are intermediaries and should be protected. That should happen as long as they follow the law of the land and take down content when asked by law enforcement agencies.”

However, with the deadline passing and the government and tech firms are in a tug of war, there is uncertainty around the protection these companies can claim under the rules. Without the protection available to them, it remains to be seen how far they can be held liable.

“Now the question is whose perception of the law is to prevail. The companies say they will take down the content when there is a court order. Also, they will block it in India but will keep it in the rest of the world. The government seems to think it can unilaterally order the companies and that should be sufficient,” Hegde explained.

However, exercising such power on these companies is not possible, and as the situation continues, courts will have to decide, experts said.

In the hands of court

Explained Rahul Matthan, partner, Trilegal, “Let’s say, there is a content that is being put up, and social media firms are held liable for it and are sued for damages. At that point in time, tech firms will go to court and say they cannot be held liable because they have intermediary liability protection under Section 79.”

If they cannot claim protection under Section 79, and if a case is filed, it needs to be seen what the court says as to whether they can be invoked or not, he added.

Petitions in Indian courts are already piling up. After the announcement in February, close to six writ petitions were filed before three high courts in India challenging the new IT rules.

Facebook-owned messaging platform WhatsApp sued the Centre in the Delhi High Court on Monday on grounds that the new IT rules will end privacy, according to a Reuters report. More such instances are likely to follow as the tug of war between the government and tech companies continue, said Pavan Duggal, a senior advocate at the Supreme Court.

What happens now

Srinivas Kodali, independent researcher, Free Software Movement of India, said, “What is going to happen is what courts say.”

According to Kodali, if it comes to an impasse, it will have an economic impact for India. “It is a geopolitical issue. We are dependent on the US for aid and US companies have invested in India.” Any drastic measure from the Indian government can have a ripple effect from US investors in India.

Though the impact will be minimal for users as the uncertainty continues, there is a possibility of activists and critical voices being censored, Kodali added.

According to a source who works in public policy in a top tech firm and did not want to be quoted, losing the intermediary tag might result in increased censorship.

Is there a way out?

Matthan of Trilegal pointed that it has not come to an impasse yet, since the government is yet to enforce the rules. However, digital rights activists say that there cannot be a middle ground and it should be scrapped, others suggest alternatives. None involves implementing the policy as such.

Nikhil Pahwa, digital rights activist, said: “IT rules should be declared unconstitutional. They aren't just problematic for social media companies but for users as well. I don't think there is any scope for a middle ground. They infringe on our fundamental right to privacy and freedom of expression.”

The public policy expert quoted above explained that expecting large social media firms to comply with complex rules in three months’ time is hardly a fair proposition when it infringes the privacy of its users especially.

“Finding a person for the role a Chief Compliance Officer is difficult than one would expect. If anything goes wrong with respect to compliance, the entire responsibility falls on them, and, unsurprisingly, not many would be willing,” the expert said. According to him, more discussions and time need to be provided to the firms.

Facebook recently appointed its first Chief Compliance Officer in the US amid the increasing scrutiny it is facing in the US. Google has advertised for a Chief Compliance Officer for India. Its global Chief Compliance Officer Spyro Karetsos. Twitter did not comment on queries on compliance with the new IT rules.

“A way out would be to set up a regulatory body independent of the government and social media companies. Facebook has set up an oversight court in the US. We would need similar policies in India. They should have the power to effectively sanction and enforce punishment,” Hegde said.

(With additional inputs from Payaswini Ranganath)