Due Diligence To Be Observed By Social Media Intermediaries And Significant Social Media Intermediaries Under Information Technology Rules, 2021
03 May 2021
Global Advertising Lawyers Alliance (GALA)
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The Government of India has notified the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
in supersession of the Information Technology (Intermediary
Guidelines) Rules, 2011.
The new Rules have demarcated between ‘social media
intermediary’ and ‘significant social media
intermediary’. Significant social media intermediaries,
who have to observe additional due diligence are defined in the
amended Rules as social media intermediaries with users above such
threshold as may be notified by the Central Government. The
Government has set Fifty Lakh (Five Million) registered users as
The intermediaries have to observe due diligence, such as
prominently publishing on its website or application or both, the
or usage of its computer resource by any person. They have to
inform the users about the prohibited content. Also, upon receiving
actual knowledge in the form of an order by a court of competent
jurisdiction or on being notified by the appropriate Government or
its agency, the intermediary shall not host, store or publish any
prohibited information. If any such information is hosted, stored
or published, the intermediary shall remove or disable access to
that information within thirty-six hours from being notified.
Intermediary shall also preserve such information and associated
records for one hundred and eighty days for investigation purposes,
or for longer period as may be required by the court or by
Government agencies. Intermediaries are also required to
expeditiously furnish information concerning verification of
identity, or prevention, detection, investigation, or prosecution,
of offences under any law or for cyber security incidents within
seventy two hours of the receipt of a lawful order. The
intermediary shall also publish the name of the Grievance Officer
and his/her contact details as well as mechanism for complaint.
Grievance Officer shall acknowledge the complaint within twenty
four hours and resolve it within 15 days from the date of its
receipt. Intermediaries are also required to remove or disable
access to any content which exposes the private area of any person,
or shows full or partial nudity or sexual act or conduct including
artificially morphed images within twenty four hours from the
receipt of a complaint.
Additional due diligence have to be observed by a significant
social media intermediary such as appointing an Indian resident as
Chief Compliance Officer, a nodal contact person for 24×7
coordination with law enforcement agencies and officers, and a
Resident Grievance Officer; and publishing a monthly compliance
One of the most contentious Rules to be followed by a
significant social media intermediary providing messaging services,
is enabling the identification of the first originator of the
information. If the first originator is located outside India, the
first originator of that information within India shall be
considered as the first originator of the information.
Another major liability on significant social media
intermediary is that they must endeavour to deploy technology-based
measures such as automated tools to proactively identify prohibited
information such as information depicting any act or simulation in
any form depicting rape, child sexual abuse or conduct, whether
explicit or implicit, or any information which is exactly identical
in content to information that has previously been removed or
access to which has been disabled.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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