Digital Intermediary Rules Confuse More Than Clarify

Context: The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, rather than clearly clarifying the regulatory norms, is about to make things significantly more confused.

Provisions under contention and key concerns therein:

• ‘Significant’ social media threshold: Social media platforms with more than 5 million registered users in India to be categorised as ‘significant’ social media intermediaries.
  • Many social media intermediaries have more than 5 million registered users in India, but number of active users on their site is far lower.
  • For e.g. platforms that offer once-in-a-lifetime services (online matrimonial sites) often considers more inactive users as a validation of their performance efficiency.
• Applicability on messaging services: Under Rule 4(2), significant social media intermediaries that provide services “primarily in the nature of messaging” are required to comply with the rules.
  • The obligation of traceability of messages is antithetical to constitutional notions of liberty.
  • There is also an ambiguity regarding what constitutes messaging service, as every online service has a messaging service as an ancillary offering.
• Voluntary verification: Obligation to offer users the ability to voluntarily verify themselves.
  • However, the outcomes may be unsatisfactory due to the non-existence of mandatory verification.
• Mandatory Localisation: Applied to significant social media intermediaries would place an additional burden on foreign companies offering true virtual services.
  • They are required to have a physical address in India, appoint a chief compliance officer, nodal contact persons for coordination with law enforcement, and a grievance officer and all of whom must be physically resident in India.
  • This is forcefully applied to companies which either act as a repository (Github) or offer niche services (Slack) since they do not need to be in India to provide their services and thus will be forced to reduce their subscribers.

Conclusion: Government’s interest in strictly regulating social media companies is understandable (as algorithms shape the news we consume and also the products we purchase), but it requires a scalpel-like finely honed approach so that they can excise the patterns of behaviour that the laws are trying to change.