WHAT HAS HAPPENED?
The Ministry of Electronics and Information Technology (Ministry) has published an advisory (Advisory) dated 03rd September 2024 that emphasizes on fulfillment of due diligence requirements laid down on intermediaries under the Information and Technology Act (IT Act) and the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules).
The advisory has been published on the backdrop of the order dated 16th July 2024 passed by Hon’ble Bombay High Court in the matter of National Stock Exchange of India Ltd. vs. Meta Platforms, Inc. & Ors (HC Order).
The National Stock Exchange (NSE) filed the case in response to the circulation of fake videos on social media featuring NSE CEO Ashishkumar Chauhan. In June 2024, NSE issued a press release cautioning the public against engaging with or being influenced by these deceptive and misleading clips.
By July, NSE pursued legal action, alleging that the platforms were slow to remove the flagged content. NSE contended that such videos could cause “serious and irreparable harm” to investors who might be misled by false information. Consequently, the Hon’ble High Court ordered Meta to remove false information and altered profiles related to NSE within ten hours of receiving a complaint.
WHAT DOES THE ADVISORY SAY?
The Ministry published the Advisory to instruct all the intermediaries, even those that were not party to the HC Order, to evaluate and correct their Intermediary due diligence strategy.
The Advisory specifically emphasised on intermediary’s adherence to the action timelines mandated under the Rules. It urged intermediaries to-
Take immediate action to remove any prohibited content from their platforms as required under the Rules.
Proactively complete the takedown process for any identified prohibited information rather than waiting for the maximum time limits set by the Rules.
WHAT ARE THE ACTION TIMELINES?
The HC Order, the Advisory and other advisories published by the Ministry have time and again emphasised on the shortfall of Intermediaries to adhere to the action timelines mandated under the Rules.
The various action timelines mandated upon intermediaries and significant social media intermediaries under the Rules are as follows:
HOW TO ENSURE COMPLIANCE?
Considering the Rules, HC Order, the Advisory and other advisories, the intermediaries must incorporate safeguards to timely comply with the due diligence requirements. This can be ensured by:
Enhanced compliance measures and internal controls: The intermediaries should implement comprehensive compliance programs. This includes documenting and implementing policies that effectuate the due diligence required under applicable laws. The intermediaries should also strengthen their internal controls and risk management systems. This includes establishing clearer protocols for moderating user content, handling complaints and grievances, documenting findings and coordinating with stakeholders including users and regulatory authorities.
Periodic reviews and audits: The intermediaries should conduct regular reviews and audits on its compliance measures and internal controls inter alia reviewing their privacy notices to ensure adequate consents are sought, retention policies to ensure that the data that is required to be deleted must be deleted and the data that is required to be retained must be retained only for the specified period.
CONCLUDING REMARKS
One of the core purposes of the information technology law regime of India is to foster a safe online environment. To achieve this, both, intermediaries and its users, must take proactive steps.
The intermediaries must adhere to the mandates provisioned under the Rules. They should implement comprehensive internal controls, conduct regular reviews and audits, and establish clear protocols for handling complaints and monitoring compliance.
By prioritizing the compliance timelines and strengthening their internal controls, intermediaries can play a vital role in fostering accountability and enhancing the overall integrity of digital communication.
Further, responsible use of intermediary platforms by the users is equally crucial in this ecosystem. Users must engage actively and responsibly, reporting harmful content and misuse while understanding the implications of their online behaviour. By fostering a culture of accountability and vigilance, users can contribute to a safer digital space.
Ultimately, by prioritizing these timelines and strengthening their internal controls, intermediaries can play a vital role in fostering accountability and enhancing the overall integrity of digital communication, with users serving as active partners in this mission.
In case of feedback, suggestions, or queries, please reach out to the C&M team on tmt@chandhiok.com
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