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This article is written by Buddhisagar Kulkarni, pursuing Diploma in Business Laws for In-House Counsels from LawSikho.

Introduction

We rely heavily on Google and various other social media sites for news, entertainment, and other purposes in this digital age. Our reliance on social media is unsafe because there is a high risk of abuse. As a result, there was an apparent need for strict rules governing any form of information and communication via intermediaries. In response, the Ministry of Electronics and Information Technology published for public comment the draft Information Technology (Intermediary Guideline) Rules, 2018.

Accordingly, the Ministry of Electronics and Information Technology, Government of India published The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”) on 25th February, 2021.

The IT Rules, 2021 have been notified under Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000 (“IT Act”).

The Information Technology (Intermediary Guidelines) Rules, 2011, have been superseded by the IT Rules, 2021.

The IT Rules, 2021, aim to accomplish two goals: 

  1. Rising the responsibility of social media platforms (such as Facebook, Instagram, Twitter, Google and others) to prevent their abuse and exploitation; and 
  2. Empowering social media users by setting up a three-tier redressal mechanism for efficient grievance settlement.

In this article, we will look at the background for the introduction of IT Rules, 2021, its consequences on Google, the purpose of the monthly transparency report and the publishing of Google’s first transparency report. 

Background

The Supreme Court in suo-moto writ petition (Prajwala case) by its order dated 11th December, 2018 observed that the Indian government should develop guidelines to eliminate child pornography, rape, and gang rape images, videos, and websites on content hosting platforms.

In 2020, a Rajya Sabha Ad-hoc Committee presented its report on the issue of social media pornography and its influence on children and society as a whole and suggested that the original creator of such content be identified.

The current IT Rules, 2021 have been drawn up with all previous decisions in mind, as well as the suggestions of the relevant authorities. Furthermore, it was enforced to keep children away from content that could harm their mental development.

Purpose of IT Rules, 2021

The purpose of the IT Rules, 2021 are as stated below;

  • The IT Rules, 2021 intend to have a strong complaint mechanism for users of social media and over-the-top (OTT) platforms to resolve their complaints.
  • The focus of the IT Rules, 2021 is on the protection of women and children from sex crimes on social media.
  • Online content publishers and social media intermediaries should abide by the country’s Constitution and local laws.
  • Before the IT Rules, 2021 came into force, we did not know to whom we should complain if we came across any issue on social media regarding harassment, morphing or fraud. So, what the Government is trying to do through the IT Rules, 2021 is that they are providing us with the framework to lodge our grievances.  

Intermediaries under Section 2(1)(ua)(w) of IT Act

Internet intermediaries are entities that facilitate access to the internet or the provision of internet-based services. Intermediaries include internet or telecom service providers, online marketplace, search engines, online payment sites, online auction sites and social media platforms.

Classification of social media

Under the IT Rules, 2021, social media intermediaries are divided into two parts:

  1. Social Media Intermediaries (SMI): This category would include social media platforms with less than 50 lakhs subscribers; and
  2. Significant Social Media Intermediaries (SSMI): Those social media platforms with more than 50 lakhs subscribers would be classified as significant social media intermediaries, with stricter rules and stricter compliance requirements.

The term SMI refers to an intermediary that primarily or solely facilitates online communication between two or more users by allowing them to create, upload, share, disseminate, modify or access information through its services.

Under the IT Rules, 2021, Google is treated as SSMI since – (a) it allows users to access information available on the internet, (b) its video-sharing platform YouTube allows users to upload, share and access videos and (c) it has more than 50 lakh subscribers. We will now have a look at how the IT Rules, 2021 affect Google.

Compliances under IT Rules, 2021 for Google

  1. Sections 3 and 4 of the IT Rules, 2021 enumerates due diligence provisions to be undertaken by the Social Media Intermediaries and Significant Social Media Intermediaries.
  2. Many people use Google in India. Google being an SSMI has to follow due diligence for SMI as well as SSMI as enumerated below.

Google must adopt grievance redressal methods

  • Google must designate a Grievance Officer to handle complaints and provide the name and contact information for such personnel.
  • The Grievance Officer must admit the complaint within twenty-four hours and solve it within fifteen days of its receiving.

Google must make sure its users’ online safety

  • Google shall take away or deactivate access to content that exposes individuals’ private areas, shows such individuals in full or in a partially nude state or in a sexual act, or is in the nature of imitation, including morphed images, within twenty-four hours of receiving complaints.
  • A complaint of this nature can be lodged by the person or by another person on his or her behalf.

Google must delete unlawful information

Google, upon receiving actual information in the form of a court ruling or being informed by the appropriate government or its agencies via the appropriate officer, must not sponsor or upload any information that is restricted under any law concerning India’s sovereignty and integrity, civil order, closer ties with foreign countries, and so on.

Google needs to conduct the following additional due diligence

As stated in Section 4 of IT Rules, 2021, Google, being an SSMI, must observe additional due diligence as follows:

  • Google shall designate a Chief Compliance Officer. He will have to ensure that the IT Act and IT Rules, 2021, are followed. A person of this type must be a senior employee of Google and should be a citizen of India.
  • Google shall designate a Nodal Contact Person to collaborate with law enforcement officials twenty-four hours a day and seven days a week. This person must be an employee of Google and a resident of India.
  • As mentioned earlier, Google shall designate a Resident Grievance Officer to fulfil the duties outlined in the Grievance Redressal Mechanism. This person must be an employee of Google and a resident of India.
  • Google shall notify a monthly compliance report detailing the information of complaints received, actions taken in response to the complaints received and the particulars of content taken away proactively by Google.

Consequences of non-compliance with IT Rules, 2021

The consequences of non-compliance with IT Rules, 2021 are as follows;

  • Section 79 of the IT Act defines safe harbour provisions, which safeguard SMIs and SSMIs by shielding them from legal liability for any content published on their platforms.
  • If Google fails to exercise due diligence, the safe harbour provisions will not extend to it.
  • If Google loses its safe harbour protection, its officials are technically liable to be punished if any content, even if uploaded on its platform by a third party, violates local laws. 
  • It means that the law enforcement officials would be fully within their powers to prosecute not only the individual who shared the content, but also Google’s employees if any content on Google breaches local laws.
  • The lack of Section 79 of the IT Act’s umbrella protection could lead to circumstances where Google’s employees are held accountable for no fault of their own.
  • This could create a situation where employees of Google are held personally accountable for failing to ensure that Google complied with the law. Employees of Google could be held accountable even if they were not at fault.

Google: not an SMI?

Google moved the Delhi High Court division bench in June 2021 to seek interim protection against the step to assert its search engine an SMI under the IT Rules 2021. Google asked the court to overturn an order issued by a single-judge bench on April 20 that concerned the company in regards to certain offensive content on a pornographic website.

A single-judge bench had instructed Google to erase morphed images of a woman from certain pornographic websites within 24 hours of receiving the order. The woman claimed that her photos from Facebook and Instagram were stolen, morphed, and posted on various pornographic websites. The order stated that if Google fails to erase the questionable content from all sites worldwide, the company will lose its protection as an intermediary under Section 79(1) of the IT Act, and its officers will be responsible for the action as mandated by Section 85 of the IT Act.

Google argued in its appeal to the division bench that the single judge erred in referring to its search engine as an SMI rather than an aggregator. Furthermore, it asserted that while it can remove questionable content in India, it may not be feasible to do the same on a global level.

Google contended that the contested directive is impossible for a search engine to follow due to its automated and passive operation. It also violates the established principles that no proactive tracking can be aimed because it thaws free speech and may result in over-blocking of otherwise valid content. According to Google, search engines do not host content; rather, they index available data. It further said that the role of search engines is reactive rather than proactive, as suggested by the Court.

Google requested that a portion of an April order that “mischaracterizes” its search engine as an SMI required to comply with the IT Rules, 2021 be set aside. Google informed the court that it is “merely an aggregator,” and that the IT Rules, 2021 describe SMIs as channels for online interaction or the formation and posting of content. “Google is an intermediary, not an SMI,” it claimed while requesting immunity from any forcible action for failing to follow the template or guidelines established by the single judge.

The division bench did not stay the order, but instead issued notices to the Centre, Delhi government, Internet Service Providers Association of India, Facebook, the pornographic site, and the woman, whose petition had resulted in the single judge’s ruling, requesting replies to Google’s petition by July 25, 2021. Experts concurred that Google’s appeal not to be identified as an SMI may have value. It is interesting to note what judgment the division bench of the High Court passes – whether Google is merely an intermediary or SMI. The above judgment will have implications on other search engines also.

Transparency report under IT Rules, 2021

As mentioned earlier, under IT Rules, 2021, SSMIs such as Google have to publish a monthly transparency report. As per Section 4 (d) of IT Rules, 2021, every month, SSMI must publish a compliance report detailing (a) the details of complaints received, (b) the action taken in response, (c) the number of particular communication links or parts of information that SSMI has removed or deactivated access to following any proactive monitoring undertaken using automated tools, and (d) any other relevant information as specified.

Government can check the actions taken by SSMI during a particular month for any complaints received by it for any objectionable content on its platform through such a monthly transparency report.

Google’s first transparency report under the new IT regulations

Google India has released its first-ever transparency report under the IT Rules, 2021, which contains information about complaints received from users in the country as well as actions taken across Google’s platforms that are categorised as SSMIs under the IT Rules, 2021. The current report includes grievances received and handled between April 1 and April 30 of this year. Google stated that there will be a two-month reporting lag to allow for information processing and verification.

The report is important because Google is the first tech company that meets the definition of an SSMI to submit the report under the IT Rules, 2021. For April 2021, Google got a total of 27,762 complaints, with 59,350 removals as stated in the report. Any content that Google’s community rules, merchandise policies, or local legal requirements are removed.

Almost 96% of complaints (26,707) are about copyright issues, while 1.3% are about trademarks (357). Approximately 1% dealt with defamation (275). Other legal demands accounted for 1% (272), contraband accounted for 0.4% (114), and circumvention accounted for 0.1%. (37). According to Google, some demands may allege a violation of intellectual property rights, while others may allege a contravention of local rules forbidding certain types of content, such as defamation.

The IT Rules, 2021, which were announced on February 25, 2021, require SSMIs, or those with more than 5 million users, to publish a monthly compliance report detailing the particulars of complaints received and actions taken, as well as the set of specific communication links or parts of data that the intermediary has erased or disabled access to following any proactive monitoring performed using automated tools. Each unique URL in a particular complaint is considered an independent “item” by Google. A single complaint may include various units that likely be associated with the same or separate pieces of content.

According to Google’s report, when it receives complaints from specific users about supposedly unauthorised or harmful content, it evaluates the complaint to see if the content infringes its community guidelines or content policies, or if it fulfils local legal requirements for deletion. Google also mentioned that there could be a variety of reasons why they did not delete content based on user complaints. According to the report, some requests are not detailed enough for Google to know what the user wanted it to erase (for example, no URL is listed in the request), or the content has already been deleted by the time the complaint is handled.

According to Google, future reports will include information on removals as a result of automatic identification, as well as data on imitation and graphic sexual content complaints received after May 25, 2021.

Conclusion

The control of content hosted by intermediaries like Google is essential particularly when cyber-crimes against women and children are on the rise.

Government should not use the diligence clauses under the IT Rules, 2021 as a mechanism to control and threaten the people. It must strike a balance between the reasonable restrictions on freedom of speech and expression and privacy. It also cannot use national security as a cover for spying.

The stricter compliances can have an adverse effect as they are likely to result in increased quantities of user complaints and access requests by government entities, making it more difficult for Google to address them within the limited time frames stipulated by the IT Rules 2021. Their effect on content delivery over the internet is substantial, involves practical threats, and compliance costs for organisations such as Google.

The definition of social media intermediary is unclear and may comprise any service providers that facilitate user interactions.

Google has moved to Delhi High Court stating that it is “merely an aggregator” and not an SMI under IT Rules 2021. The said case’s outcome is awaited. 

References


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