Introduction
Status of business-to-business service platforms
Compliance report format
Content takedown notification
Common officers
Comment
On 1 November 2021, the Indian Ministry of Electronics and Information Technology released a set of FAQs to provide clarity on the application of the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules 2021 (the Rules), which were issued under the Information Technology Act 2000 earlier in 2021. The Rules substantially modified the regime governing "intermediaries". For a quick refresher on the Rules and how they impact digital businesses, click here.
It is worth noting that the FAQs are not legally binding, nor are they a restatement or modification of the Rules. Instead, they may provide some insight into the regulatory intent behind some of the provisions of the new Rules and how certain parts of the Rules may be enforced. For this reason, the FAQs make useful reading.
This article outlines some of the interesting clarifications provided by the FAQs.
Status of business-to-business service platforms
Intermediaries that primarily enable commercial or business-oriented transactions – for example, those that provide access to internet or search-engine services, e-mail services, or online storage services – will not be viewed as "social media intermediaries". To qualify as a social media intermediary, the platform would have to enable socialisation or social networking by allowing users to carry out actions such as following, subscribing and interacting with strangers, and sharing content.
There is no fixed format for the monthly compliance report. It can be prepared at the discretion of the intermediary and may include details such as:
- the subject of user complaints;
- voluntary actions taken; and
- the number of links removed.
Significant social media intermediaries are required to notify users if their content is taken down because:
- it is prohibited by law; or
- it has been removed pursuant to the grievance redressal mechanism.
Notifying users may not be prudent in instances wherein bot activity, malware or terrorism is suspected. In such cases, the intermediary may devise their own approach to effectively counter the bot activity, for example.
The parent of a significant social media intermediary can appoint common officers for multiple platforms, provided that the contact details of such officers are separately listed on each platform.
In these FAQs, the government has sought to address the queries it received. According to government, these FAQs were released to "bring clarity as well as to explain the nuances" of the obligations on intermediaries. While not legally binding, these FAQs do bring additional clarity on the regulation and, in some cases, clarify their application (for example, how intermediaries that only incidentally enable online interactions are not regulated like social media). In part, these FAQs were a response to the criticism received by the government over the past few months – not to mention the various challenges to their legality that have been brought before Indian courts. This also indicates that the government remains committed to enforcing these new rules, much more so than the older 2011 rules, which have been enforced only sporadically.
For further information on this topic please contact Vikram Jeet Singh at BTG Legal by telephone (+91 22 6177 2900) or email ([email protected]). The BTG Legal website can be accessed at www.btg-legal.com.