New Information Technology rules by Aniket khatri@Lexcliq

 

The Ministry of Electronics and Information Technology is considering amending some provisions of the Information Technology (IT) Act to hold social media intermediaries like Facebook and Twitter, as well as over-the-top (OTT) services like Netflix and Amazon’s Prime Video, more liable for the material they post.

Section 79 of the IT Act provides legal immunity to social media intermediaries for any content uploaded on their networks. The protection offered, however, is nullified if the government informs the intermediary that “any information, data, or communication connection located in or connected to a computer resource owned by the intermediary is being utilized to perform the unlawful act. “The content provided by the intermediary is being utilized to perform the criminal act, and the intermediary fails to delete or prevent access to that content promptly.”

While performing its obligations, an intermediary, particularly a social media intermediary and a large social media intermediary, must exercise the following due diligence.

  • the intermediary shall prominently publish on its website, mobile-based application or both, as the case may be, the rules and regulations, privacy policy, and user agreement for access or usage of its computer resource by any person;
  • an intermediary, on whose computer resource the information is stored, hosted, or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force about the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; about contempt of court; defamation; incitement to an offense relating to the above, or any information which is prohibited under any law for the time being in force

Additional Due Diligence to be Observed by a Significant Social Media Intermediary:

A significant social network intermediary must, in addition to the due diligence required by Rule 3, notify the threshold within three months of the date of notification under the clause.

  • Appoint a Chief Enforcement Officer who will be responsible for maintaining compliance with the Act and its laws, as well as being liable in any legal action involving any related third-party information, data, or contact connection made accessibly or hosted by the company .where he fails to guarantee that the intermediary follows due diligence although carrying out its responsibilities under the Act and rules made thereunder, Provided that no liability under the Act or rules made thereunder may be imposed on such significant social media intermediary without being given an opportunity of being heard.
  • appoint a nodal contact person for 24×7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made by the provisions of law or rules made thereunder.

Punishment for the Non-adherence to the Aforementioned Provisions:

What happens if someone doesn’t adhere to the guidelines or rules. Following are a few punishments prescribed under the law:

  • Section 67A– Punishment for publishing or transmitting of material containing sexually explicit acts, etc., in electronic form – Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
  • Promotion of cigarettes or other tobacco products, or use of intoxicants, including alcohol, and Electronic Nicotine Delivery System (ENDS) and similar goods that enable nicotine delivery, save for the purposes, in the manner, and to the extent, as may be allowed under the Drugs and Cosmetics Act, 1940and Rules issued there under; promotion of cigarettes or other tobacco products, or use of intoxicants, including alcohol, and Electronic Nicotine Delivery System (ENDS) and similar goods that enable nicotine delivery

Deletion & Deactivation of access of Content under the IT Act

This particular provision has been in the news for the past few weeks and there has been a lot of misinformation that was being circulated with respect to the same. But what exactly does this provision state and what would be its impact?

  • Section 79(3)(b)of the Act requires the intermediary to delete or deactivate access after acquiring real knowledge in the form of a court order or being notified by the competent government authority or its agency Without vitiating any evidence, under Section 79(3)(b) of the Act, should erase or block access to unlawful conduct within 24 hours. Furthermore, the intermediary must keep such material for at least 180 days for investigative reasons, or for as long as the court or lawfully authorized government authorities demand.
  • A court order or communication from the proper government or its agency is the sole requirement for an intermediary to act. The intermediary is not compelled to use its judgment in deciding what should be deleted or deactivated. Rule 3(5)of the IT Act This Rule states that when a lawful order is issued, the intermediary must supply any information or help requested by any government agency within 72 hours of communication, including information or assistance concerning State security or cybersecurity; or investigation, detection, prosecution, or prevention of crime(s); and any matter related to the above. Any such request can be made in writing or electronically, to obtain such information or assistance. Furthermore, the intermediary must allow for the tracking of the information’s origination.
  • In addition, Section 79(3)(b)envisions a “notice and takedown” regime, in which the intermediary is compelled to remove illegal information after becoming aware of its presence. The Supreme Court interpreted Section 79(3)(b) in Shreya Singhal v. U.O.I. to indicate that an “intermediary upon getting real information from a court order or on being alerted by the competent authority”

 

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