Ministry of Electronics and Information Technologies publishes FAQ on intermediation rules – Commentary

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introduction
Status of B2B service platforms
Compliance report format
Content removal notification
Common officers
Comment

introduction

On November 1, 2021, India’s Ministry of Electronics and Information Technology released a series of frequently asked questions to clarify the application of the 2021 Information Technology Rules (Intermediary Guidelines and Code of Ethics media) (the rules), which were issued under the Technology Act 2000 earlier in 2021. The rules have significantly changed the regime governing “intermediaries”. For a quick reminder of the rules and their impact on digital businesses, click here.

It should be noted that the FAQs are not legally binding nor do they constitute a rewording or modification of the rules. Instead, they can provide insight into the regulatory intent behind some of the provisions of the new rules and how parts of the rules may be applied. For this reason, the FAQ is useful reading.

This article describes some of the interesting clarifications provided by the FAQ.

Status of B2B service platforms

Intermediaries who primarily enable commercial or commercial transactions – for example, those who provide access to the Internet or to search engine services, e-mail services or online storage services – will not be considered as “social media intermediaries”. To qualify as a social media intermediary, the platform would need to enable socialization or social networking by allowing users to perform actions such as following, subscribing and interacting with strangers, and sharing content.

Compliance report format

There is no fixed format for the monthly compliance report. It can be prepared at the discretion of the intermediary and can include details such as:

  • the subject of user complaints;
  • voluntary actions undertaken; and
  • the number of deleted links.

Content removal notification

Major social media intermediaries are required to notify users if their content is removed because:

  • it is prohibited by law; Where
  • it was withdrawn in accordance with the grievance mechanism.

Notifying users may not be careful in cases where bot activity, malware, or terrorism is suspected. In such cases, the middleman can design their own approach to effectively counter bot activity, for example.

Common officers

The parent company of a major social media intermediary can appoint common managers for multiple platforms, as long as the contact details of these managers are listed separately on each platform.

Comment

In these FAQs, the government has sought to answer the questions it has received. According to the government, these FAQs were published to “bring clarity as well as to explain the nuances” of the obligations of intermediaries. Although not legally binding, these FAQs provide additional clarity on the regulation and, in some cases, clarify their application (for example, how intermediaries who only incidentally allow online interactions are not regulated as social media). In part, these FAQs were a response to criticism received by the government in recent months – not to mention the various challenges to their legality that have been brought before Indian courts. It also indicates that the government remains committed to enforcing these new rules, much more so than the old rules from 2011, which have only been applied sporadically.

For more information on this topic, please contact Vikram Jeet Singh at BTG Legal by phone (+91 22 6177 2900) or email ([email protected]). The BTG Legal site is accessible at www.btg-legal.com.

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