Social media companies such as Facebook, Twitter, YouTube, Instagram, and WhatsApp will lose their status as ‘intermediaries” that granted them legal protection for the user content posted on their platforms.
Till 26th May 2021, they were enjoying the legal immunity offered by Section 79 of the Information Technology Act, 2001. They were only obligated for taking down any illegal content that they noticed on their own, or when it was highlighted to them by the state, or the courts, or any responsible/aggrieved party. Now it’s a civil and criminal liability on them for any illegal post, be it in words, or a picture or a video.
Nobody in the information transmission business enjoys such immunities from legal claims of defamation, etc. For example, while newspapers and broadcasters have always operated under the threat of legal liability for defamation and other speech related offences, intermediaries have escaped liability despite behaving as publishers because of the immunity offered by Section 79.
As soon as these laws came into force from 26th May, the companies were unnerved and requested for further extension to implement the norms. Some of these platforms requested for more time up to six months for furnishing compliance and some social media firms (user base of 50 lakhs and above) stated that they will wait for further instructions from their company headquarters in the USA.
“They do business in India, earn good revenues, but grievance redressal will have to await instructions from the US. Some platforms, such as Twitter, keep their own fact-checkers whose names (are) neither made public nor is there any transparency as to how they are selected and what is their standing,” security analyst stated.
“Though they claim the protection of being an intermediary, they exercise their discretion to also modify and adjudicate upon the content through their own norms without any reference to Indian Constitution and laws. One can appreciate fake posts or a post injuring the dignity of women or promoting terrorism etc., but to be judgmental on free expression of views by coloring them by a self-appointed norm is something that travel beyond the mandate of exemption, which they are doing,” security expert added.