Higher legal risk for third-party content: Social media companies will challenge more restrictions

Social media companies plan to challenge any changes to the law introduced by the government to tighten guidelines on intermediaries. The changes would reduce the immunity granted to companies like Facebook, Twitter and WhatsApp, and to top players like Netflix, Amazon Prime Video, etc., under Section 79 of the IT Act. information for hosting third party content and data. In such a scenario, these companies could face higher legal risks.

Government sources had indicated earlier this week that a new Digital India Act was in the works.

Leaders of these companies have said that while the final decision will depend on the contours of the new law, but one thing is certain, it will lead to increased litigation as the current provisions are sufficiently draconian and do not merit further strengthening. The legal fraternity, while acknowledging that there should be a measure of accountability on the part of social media companies, also argues that regulation should be light.

Last year, the government made changes to the law tightening up clauses like Section 69A of the Information Technology Act. Social media companies have been asked to appoint in-country grievance officers and resolve consumer grievances within a specified timeframe, as well as nominate nodal officers to coordinate with the government on consumer issues. public order.

The companies argue that these changes are tough enough to address the government’s concerns and, if they have complied with them, why should they be subject to other tougher measures.

Under changes made last year, if social media companies fail to comply with any of the provisions, their leaders can face criminal liability and a prison sentence of up to seven years. , a provision that did not previously exist.

No wonder legal experts are also warning the government against excesses.

“The validity of Section 79 of the Information Technology Act, often referred to as the safe harbor provisions, was upheld by the Supreme Court in the Shreya Singhal case in 2015,” Ruby Singh Ahuja said. , Senior Partner, Karanjawala and Company. “Any dilution of the safe harbor provisions will not only be in direct violation of the law established by the SC, but will also not be in accordance with the law as it exists in western parts of the world,” he said. -she adds.

Echoing a similar view, Manjul Bajpai, a lawyer specializing in the telecommunications sector, said: “With a perfect balance and without compromising the security of the nation, sufficient freedom should be given to intermediaries to develop in this technological world. Technology must develop to benefit the general public. WhatsApp works wonders. Even the courts now recognize WhatsApp to notify the parties in all cases.

Mishi Choudhary, technology lawyer and founder of SFLC.in, also favors balanced and light regulation and avoids going overboard. She said: “Businesses are on a flight to Singapore, Dubai due to unpredictable regulations in India. We need lean regulations that keep people at the center. »

Cyber ​​law expert Pawan Duggal, while arguing that social media companies need to be made more accountable, also stresses that the process should be gradual rather than sudden. “India needs to come up with more compelling and effective mechanisms to make social media companies more accountable. There is a worldwide trend that general exemption from liability should not be granted. But making these companies more accountable is a slow process, it won’t happen overnight,” he said.

A balanced, non-one-size-fits-all approach is also recommended by Prashant Phillips, Partner, Lakshmikumaran & Sridharan Attorneys. “There may need to be a balanced approach that ties to the nature of the intermediary and the functions such an intermediary provides, rather than condensing all intermediaries under one omnibus categorization,” he said.

Abhishek A Rastogi, a partner at Khaitan and Company, offers a slightly contrarian view. He says a lot of personal information is confidential to these companies and any leak of this information could lead to serious financial fraud. Therefore, strict guidelines would prevent such frauds and customers/users would be more comfortable using these platforms once they are comfortable with the security standards. “While these businesses may face slightly higher legal risk, in the long run their businesses will ultimately win out as customers will be more comfortable using these platforms,” he added.

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