Hosting third-party content: Social media firms to face higher legal risks

There’s some bad news in store for social media firms as the government plans to tighten intermediary guidelines in such a manner that the immunity granted to them from legal liabilities for hosting third-party content may get diluted.

In such a scenario, firms such as Twitter, Facebook, Google, WhatsApp, and over-the-top players like Netflix, Amazon, etc, commonly referred to as intermediaries, may face higher legal risks.

A new law – Digital India Act – is in the works, which would incorporate all aspects covering cyber security, social media, digital services, personal data protection, etc, sources in the government said.

Currently, Section 79 of the IT Act provides an intermediary status to social media companies. This status provides them exemptions and certain immunity from liabilities for any third-party content and data hosted by them. It’s only when these firms fail to remove or block any content as directed by the government that they are liable to face penal action, which may see their executives being jailed also.

Sources said that there’s a thinking in the government that the safe harbour provisions under which intermediaries are exempt from legal liabilities is changing across the world and India should not lag behind. However, no fixed timeline or newer provisions replacing the existing ones have still been finalised.

“The point is that what is applicable in analogue world, should be applicable in digital world. Our thought process is that we have to have accountability on social media because it is affecting our society, our social life, our family life, our personal life, etc… there is a consensus on the issue,” said a government source.

Last year, the government had brought about a comprehensive set of new guidelines as part of the IT Act to regulate social media intermediaries as well as over-the-top platforms like Netflix, Amazon Prime Video, and stand-alone digital media outlets. It had tightened some clauses under Section 69A of the IT Act while mandating firms to appoint grievance redressal officers in the country and resolve consumer grievances within a specific time period, as well as have designated nodal officers for coordination with the government over law and order matters.

For messaging platforms like WhatsApp a new requirement was inserted that the companies have to provide the first originator of what is deemed as mischievous messages. Some of the provisions have been challenged by WhatsApp and Google and the matter is sub judice currently.

“Safe harbour is a construct of late 80s when social media and Internet were not present. The concept of complete safe harbour is redundant now,” sources said. Financial Express