Centre will now frame rules to curb internet misuse. How will tech giants be held liable?

The Centre informed the Supreme Court on Monday that it will require three months for finalising and notifying the rules that would regulate the functioning of social media intermediaries [Facebook, Twitter and others] in the country. A bench of justices Deepak Gupta and Surya Kant took the affidavit on record after advocate Rajat Nair, appearing for the Centre, mentioned the matter and said they had sought three months' time for finalisation of the Information Technology Intermediaries Guidelines (Amendment) Rules, 2018. The internet has emerged as a potent tool to cause "unimaginable disruption" to democratic polity, the Centre said. 

This raises the question. How does the Centre plan to hold the social media companies liable for the content on their platforms? Referring to a statement of the Union minister for MeitY given on July 26, 2018 in the Rajya Sabha, the affidavit said the government had promised to initiate a number of measures, including bringing amendments to the Intermediaries Guidelines Rules, 2011, to make intermediaries more liable towards the content that was published and transmitted in order to check misuse of social media platforms and spread of fake news. Some of the features of the draft Intermediary Guideline Rules 2018 include clauses for intermediaries to remove "obscene content", a 72-hour window to assist law enforcement agencies, and automated tools to remove unlawful information. Organisations with more than 50 lakh users will have to incorporate companies in India.

This move is part of ongoing discussions in India about fake news and sanitising online content. Facebook Inc is now grappling against legal moves to link Aadhaar with its user profiles. The company has come out against it on grounds that sharing of Aadhaar will violate privacy policy of users. Facebook had said that it cannot share Aadhaar number with a third party as the content on its instant messaging Whatsapp was end-to-end encrypted and even they do not have access to it. It had contended that there are four petitions—including two in Madras High Court, one in Bombay and one in Madhya Pradesh High Courts—and they contained almost similar prayers. Facebook had filed an affidavit seeking transfer of cases filed in three high courts, relating to linking of social media profiles with Aadhaar.

The Ministry of Electronics and Information Technology (MeitY) told the top court that though technology had led to economic growth and societal development, there was also an exponential rise in hate speech, fake news and anti-national activities.

The affidavit filed by Pankaj Kumar, Additional Secretary, MeitY, said, "As the internet has emerged as a potent tool to cause unimaginable disruption to the democratic polity, it was felt that the extant rules be revised for effective regulation of intermediaries, keeping in view the ever-growing threats to individual rights and the nation's integrity, sovereignty, and security."

"In view of the complexity involved in the matter and the significant impact it entails on the functioning of all stakeholders, including netizens, various government departments/ministries, social media platforms, messaging platforms, websites and mobile apps etc., a conscious and bona fide decision was taken by the respondent ministry to call for further inter-ministerial consultation so that effective, robust and comprehensive rules, covering all aspects of the matter, can be framed," the affidavit said.

It stated that after collating and analysing all the details as had emerged from the stakeholders' participation and inter-ministerial consultation, "the deponent (MeitY) has bona fide belief that a further period of three months would be required for finalising and notifying the final revised rules in accordance with law".

It said in the last few years, there was an enormous increase in the use of social media and with lower internet tariffs, availability of smart devices and last-mile connectivity, more and more people in India were becoming part of the internet or social media platforms.

"If on one hand technology has led to economic growth and societal development, on the other hand, there has been an exponential rise in hate speech, fake news, anti-national activities, defamatory postings and other unlawful activities using internet/social media platforms," it said.

It said the government had initiated a wide-scale consultation process to revise the earlier rules with the participation and involvement of all the stakeholders and that the draft rules, 2018 were published for public comments.

It added that a total of 171 comments were received by the ministry and to maintain transparency, all of those were published for counter comments.

The affidavit said multiple rounds of discussions involving various chambers of commerce, associations and social media companies were also held.

"Furthermore, inter-ministerial consultations were also initiated and undertaken to seek views of other ministries, including the Ministry of Home Affairs, the Ministry of Information and Broadcasting, the Ministry of Health and Family Welfare, the Ministry of Women and Child development, the Ministry of Commerce etc., on the draft revised rules," it added.

On September 24, the top court had observed that technology had taken a "dangerous turn" and asked the Centre to apprise it within three weeks about the time-frame needed to come up with guidelines to curb misuse of social media in the country.

Expressing serious concern over some social media platforms not being able to trace the originator of a message or an online content, the apex court had said the government must step in now.

-Inputs from PTI