Explained: What does Section 79 of IT Act mean for social media intermediaries?

Google, Facebook, Twitter, and WhatsApp were given the ultimatum to comply with new rules but except Twitter, every other social media intermediary seems to have sent details of Chief Compliance Officer, Nodal Contact Person, Grievance Officer with the IT Ministry as required under the new rules. However, Twitter is the odd one out as it has not shared details of the Chief Compliance Officer. It has only shared details of a lawyer working in a law firm in India as their Nodal Contact Person and Grievance Officer.

The new digital rules ask social media companies like Facebook, WhatsApp, and Twitter to identify within 36 hours the originator of a flagged message as well as to conduct additional due diligence, including the appointment of a Chief Compliance Officer, Nodal Contact Person, and resident Grievance Officer.

What has caught the attention of people is the term ‘safe harbour’ which is basically if these social media platforms don’t comply with the new rules, their indemnity will be taken away under Section 79 of the Information Technology Act.

Let’s  first understand the nitty gritty of  Section 79 of the IT Act

Section 79 in The Information Technology Act, 2000 says that any social media intermediary will not be in the radar of legal action for any third party information, data, or communication link made available or hosted by him. It further reveals that the available protection shall be applicable if the said intermediary does not in any way, initiate the transmission of the message in question, select the receiver of the transmitted message, and do not modify any information contained in the transmission.

To decode this for easier understanding, it means that if a social media platform just becomes a bridge to carry a message from one person to another without any kind of interference, then it will not be liable for any legal action.  

However, if the intermediary upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by it is being used to commit the unlawful act and the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner, then it is calling for trouble as that can face legal prosecution.

The government has asked WhatsApp to find out ways to determine the first originator of a particular as it cites examples of riots and misinformation on social media platforms. For this, WhatsApp has to break the end-to-end encryption which is against the basic principles of the messaging platform which would eventually compromise with the idea of data minimisation.

If we look at the global norms, Section 230 of the 1996 Communications Decency Act states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

Put simply, this means that the intermediary will just act like a bookstore owner where he will not be accountable or scrutinised for the content or kind of book available.