Intermediary Status: Socially Available, Legally Endangered

The New Guidelines are mainly divided into two parts: (i) the guidelines for all intermediaries; and (ii) specific guidelines for Digital Media, including Over the Top (OTT) Platforms, news publishers, etc. This article examines the impact of the New Guidelines on intermediaries, specifically focusing on the additional compliances for 'significant social media intermediaries' as defined under the New Guidelines.

The Act defines intermediary as a person who receives, stores or transmits an electronic record on behalf of another person and includes a person who is providing any service in relation to such electronic records such as telecom service providers, e-commerce websites, cyber cafes, online payment gateways, search engines etc. Unlike the Previous Guidelines, the New Guidelines introduced a new sub-category named 'social media intermediary' to regulate the content published on social media. The scope of this new sub-category includes an intermediary which 'primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services'. Interestingly, this newly introduced category is named as 'social media' but the scope of its definition goes beyond platforms facilitating mere social interactions. It can be construed to include all channels of online communication, including emails, cloud storage service providers (specifically the ones that allow sharing of content), among others. The New Guidelines prescribe certain additional compliances for social media intermediaries if they have more than 50 lakh (or 5 million) subscribers/ users in India. The reasons for choosing '50 lakh subscribers' as the threshold are best known to the Government. Reportedly, India had 687.6 million active internet users until mid-2020 and is expected to reach 1 billion users by 2025. Out of these active internet users, as of Jan 2020, 400 million were active social media users in India. Given these numbers, 5 million users seems a very arbitrary number and will engulf all the successful startups in the online space, apart from the big players in the market. Furthermore, there is a grey area surrounding what amounts to 'registered users'. We can only hope that an active viewer of an intermediary platform (the ones which do not have account subscription feature) will not be construed as 'a registered user', until the dust settles around the New Regulations. A classic example of such an intermediary is 'Legally India', a blog for lawyers in India which allows you to comment, initiate discussions without creating an account under a pseudo identity.

By now, we know that if a person falls within the contours of 'social media intermediary', it is just a matter of time for it to reach the stage of 'significant social media intermediary'. Entities which are closer to the border line may choose to amend the terms of their services and provide for an account suspension policy which will provide that if a user is not active for more than a specified number of days, the intermediary will temporarily suspend their user account. This may be a short term solution for such border line cases until they have all the internal policies in place. The New Guidelines prescribe that the entities which fall within this new sub-category, should have by now appointed an Indian resident senior level employee as the Chief Compliance Officer and an Indian resident employee as their Grievance Officer and a nodal contact point for Governmental Agencies. Further, they must have an internal system which allows them to periodically publish a monthly compliance report of the New Guidelines and a technology-based system to automatically identify the content which is in contravention of the New Guidelines on their intermediary platform. The remaining requirements include tagging of content as advertised/ sponsored/ marketed/ owned, mandatory Indian office, a grievance redressal tracking system, an authentication process for Indian residents and a clear demarcation of such verified users, amongst others. In case the significant social media intermediary is a messaging platform, it should also have such systems/ technology in place which can trace the first originator of the information.

The New Guidelines also provide the Ministry of Electronics & Information Technology a discretionary power to categorise an existing intermediary as a significant social media intermediary if it is of the opinion that the content published by such intermediary may be detrimental to the sovereignty, integrity or security of India or to maintain relations with foreign countries or to maintain public order. While the New Guidelines prescribe the factors that the Ministry needs to take into account before passing such an order such as the reach of the platform and the ability to interact between users on the intermediary platform. It is likely that this power may be used to regulate platforms which publish content but may not qualify as a social media intermediary. Currently, the safe harbour provision, covered under Section 79 of the Act, provides immunity to online platforms (who are merely providing a platform for two or more people to interact or engage and acting as an intermediary in the process) from the illegal actions of third party users of their services. In the event, a significant social media intermediary does not comply with the provisions of the New Guidelines, it loses the safety net provided under the safe harbour provisions of the Act and will be exposed to litigation for actions of the users of such intermediary platforms. These litigations may range from defamation suits to breach of public order. Considering that the reach of all intermediary platforms is pan India and cause of action may arise in any jurisdiction, defending such litigation across India will be an expensive affair for most of the intermediaries. These sweeping changes are likely to act as barriers for foreign service providers to extend their services to Indian residents due to the high compliance cost associated with it. In the long run, it is likely that certain provisions of the New Guidelines may not be able to pass through the fundamental right to privacy and free speech guaranteed under the Constitution of India.