New Social Media Rules : Messaging Platforms Can Be Asked To Trace 'First Originator' Of Messages

The new rules announced by the Central Government to regulate social media intermediaries empower it to ask messaging platforms like 'WhatsApp', 'Facebook messenger', 'Telegram' to trace the 'first originator' of messages.

This is a significant development as law enforcement agencies have been raising serious concerns regarding viral forward messages spreading fake news, hate speech etc.

Rule 5(3) of the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, says that messaging platforms, having subscribers above the threshold notified by the Centre, should enable the identification of "first originator" of the information in its computer resource, as may be required by a judicial order passed by  a court of competent jurisdiction or a competent authority under Section 69 of the Information Technology Rules.

The verbatim reproduction of the Rule is as follows

"A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under Section 69 of the Act by the Competent Authority as per the Information Technology (IT) Rules, 2009."

"Significant social media intermediary" means a social media with users above such threshold as may be notified by the Central Government.

The new rules, framed invoking powers under the Information Technology Act, have come into force with their notification in the Official Gazette today.

When can such an order for tracing originator be passed?

The rule says that such an order to trace the originator of the message can be passed only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence -

• related to the sovereignty and integrity of  India, the security of the State, friendly relations with foreign States, or public order, or
• of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years.

The rule further says that such a tracing order shall not be passed in cases where "less intrusive means are effective in identifying the originator".

The Rule has another safeguard which says that the messenger service should not be required to disclose any other message or information related to the first originator or any information related to its other uses.

The proviso to Rule 5(3) says :

"in complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users".

Where the first originator of the message is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.

Rule 4 of the 2021 Draft Rules provide 16-due diligence rules to be followed by intermediaries in India.

Further, all intermediaries are required to appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act.

Also, they should appoint a nodal person of contact for 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules made thereunder.

Explaining the intent behind the rules, Union Law Minister Ravi Shankar Prasad told reporters on Thursday, "We are not asking them (social media platform) to disclose the content; but just the originator. We want to know who began the mischief, and it will be only in cases where punishment is over five years, so there is a proper safeguard."

The rules have also appendixed a 'code of ethics' to be followed by social media intermediaries, OTT platforms and digital media. The Rules prescribe a 3-level regulatory  mechanism for compliance of 'Code of Ethics'.

Level 1 - Self Regulation.

Level 2 - Regulation by Self-Regulating Bodies.

Level 3- Oversight mechanism by Central Government.

The Centre will create a 'Grievance Portal' and any person having a complaint with content in OTT platforms or digital media may register the complaint with the 'Grievance Portal'. The complaint will be first forwarded by Centre to the concerned entity first.

OTT platforms, digital media are to appoint a 'Grievance Redressal Officer' to deal with the grievances forwarded by the Grievance Portal.

A person, who is dissatisfied with the response of the Grievance Redressal Officer, can appeal to the self-regulating body formed for the concerned entity. Further appeal can be made to the Central Government.

Case pending in the Supreme Court

It may be recalled that since 2019, the Supreme Court  has been considering a slew of petitions on the 'traceability' issue of online messenger services.

During the hearing of the case, the SC orally expressed concerns regarding lack of means to trace originators.

"Misuse of social media has become dangerous. Govt should step in to deal with the issue at the earliest. Why should we worry about the internet? We will worry about our country. We can't say we don't have the technology to track the origins of online crimes. If originators have technology to do it, we have technology to counter it and track the originator. The State can take care of itself but what recourse does the individual have? What about the individuals when they are trolled?"The way some of these technologies are operating is dangerous", a bench comprising Justices Deepak Gupta and Aniruddha Bose had orally remarked.

In a similar batch of petitions pending in the Madras High Court, an IIT Professor named Dr Kamakoti submitted certain suggestions to trace the originators of the messages. The Internet Freedom Foundation has intervened in the Madras High Court to oppose the suggestions of Dr Kamakoti, by terming them intrusive and violative of right to privacy.

It may be noted that the Madras High Court had expanded the scope of the case to explore means to ensure better cooperation between law enforcement agencies and internet intermediaries to detect and prevent cyber crimes. The original prayer for social media-Aadhaar linkage was dropped by the Court.

While so, Facebook approached the Supreme Court to transfer the case from Madras HC to the top court. The SC asked the High Court not to pass final orders in the case.

Click here to read/download the new IT Rules