A Swipe At Social Media Intermediaries
A second surprising issue taken up by the JPC in its report is the status of social media platforms as “intermediaries”. The Committee has argued that social media platforms should no longer be considered as “intermediaries” and had recommended replacing the phrase “social media intermediaries” in a particular clause of the PDP Bill with the phrase “social media platform”.
This change in terminology could have profound implications for Facebook, Twitter, etc. For decades now, social media platforms have escaped significant legal liability by arguing that they are merely intermediaries or conduits for information being published by their users and that they do not have control over the actions of their users. If they lose their status as an intermediary, they are more likely to be held liable for the acts of their users, thereby increasing their exposure to legal risk and escalating their cost of operations.
The reasoning offered by the committee for this particular change is as follows:
“…the Committee noted that today social media intermediaries act as if they are above the sovereign and they lay down boundaries which circumscribe the operation of the sovereign. Moreover, the social media intermediaries are not actually intermediaries but they are platforms that do the dual functions of an intermediary and a platform”.
The reasoning for this specific clause is complemented by the following comments made by the JPC earlier in its report:
“…the committee considering the immediate need to regulate social media intermediaries have a strong view that these designated intermediaries may be working as publishers of the content in many situations….”
“A mechanism may be devised in which social media platforms, which do not act as intermediaries, will be held responsible for the content from unverified accounts on their platforms. Once application for verification is submitted with necessary documents, the social media intermediaries must mandatorily verify the account. Moreover the Committee also recommend that no social media platform should be allowed to operate in India unless the parent company handling the technology sets up an office in India.” (para 1.15.12.7)
The above reasoning reflects a general hardening of public opinion across the world against Silicon Valley platforms for what is perceived as their partisan content moderation tactics. In India though, the ruling party had little problem with these platforms until Twitter stood up to it early this year when asked to pull down certain content. The above recommendation of the JPC is more likely a rhetorical exercise meant to scare Silicon Valley, than an actual regulatory measure that will be enforced on the ground.