Social Media in Law

In one line

The Rules create three categories of intermediary, the top one is defined by a user threshold and carries eleven additional duties, and the heaviest of those is the obligation to identify the first originator of a message.

Where the Rules come from

Rule 1 calls them the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and brings them into force on the date of their publication in the Official Gazette, which for G.S.R. 139(E) is 25 February 2021. They are made under section 87(1) and clauses (z) and (zg) of section 87(2), and they are made in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011, except as respects things done or omitted before the supersession.

That saving clause matters in an answer about an old takedown. Conduct in 2019 is judged by the 2011 Rules, which is why Shreya Singhal's reading of rule 3(4) of the 2011 Rules is still the law of that period. Chapter 1360.

The three categories

One: an intermediary. Section 2(1)(w) of the Act: any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record. The definition then gives examples: telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online auction sites, online market places and cyber cafes.

Two: a social media intermediary. Rule 2(1)(w) of the IT Rules 2021: an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.

Note the two limbs. The service must be primarily or solely for interaction, so a bank's website with a comment facility is not one; and it must allow users to do the listed things with information.

Three: a significant social media intermediary. Rule 2(1)(v): a social media intermediary having a number of registered users in India above such threshold as notified by the Central Government. The notified threshold is fifty lakh registered users in India.

And two more categories were added in 2023: an online gaming intermediary, which enables users to access one or more online games, and an online gaming self-regulatory body designated under rule 4A.

The consequence of the tiering. Rule 3 binds every intermediary. Rule 4 binds only a significant social media intermediary, with parts of it extended in 2023 to an online gaming intermediary enabling access to a permissible online real money game.

Rule 4(1): the three officers

A significant social media intermediary must, within three months of the notification of the threshold, appoint:

(a) a Chief Compliance Officer, responsible for ensuring compliance with the Act and the rules, who shall be liable in any proceedings relating to any relevant third party information, data or communication link made available or hosted by the intermediary where he fails to ensure that the intermediary observes due diligence, subject to a proviso that he shall not be liable without being given an opportunity of being heard. The Explanation requires him to be a key managerial personnel or other senior employee resident in India.