Govt notifies 5-mn-user threshold for significant social media intermediary

Facebook and Twitter said they are studying the rules; Experts question compliance with PDP Bill

The government on Friday specified 5 million registered users in India as the threshold for a social media intermediary to be considered a significant social media intermediary as mentioned in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. 

The rules make a distinction between social media intermediaries and significant social media intermediaries, who have a large number of users. The government had said on Thursday, while notifying the Rules, that it will specify the threshold of the user base that will distinguish between the two. 

Large social media firms including Facebook and Twitter said they are studying the rules.

"We are studying the updated guidelines, and we look forward to continued engagement with the Government of India to strike a balance between transparency, freedom of expression, and privacy. Twitter supports a forward-looking approach to regulation that protects the Open Internet, universal access, and promotes competition and innovation. We believe that regulation is beneficial when it safeguards citizen’s fundamental rights and reinforces online freedom,” a Twitter spokesperson said. 

Facebook said Thursday it "will carefully study the new rules".

Conflict with Personal Data Protection Bill

Several experts pointed out that some provisions of the new rules, notified by the government on Thursday, would be in conflict with the proposed personal data protection legislation that is currently with a Joint Parliamentary Committee. 

"Industry is going to be under a huge compliance obligation which is going to be a problem for everybody. I feel the industry is going to challenge this in some way or the other or ask the government for more clarity," said Salman Waris, managing partner at Delhi-based TechLegis Advocates & Solicitors. 

The rules require companies to store data of individuals using their platforms up to 180 days, after any cancellation or withdrawal of their registration with the platform. 

Waris said provisions like these go against the intent of the PDP Bill which aims to ensure personal information of individuals is not disclosed. 

Some also questioned the way the Rules were passed, without consultation with the Parliament.

"The current content of these rules are beyond what the government could exercise as rule making power under the Information Technology Act. The government had to go to parliament and pass an amendment. It is something that required a new legal provision or an amendment to the IT Act itself so it required both houses of Parliament to agree on it," said Raman Jit Singh Chima, Senior international counsel and Asia Pacific Policy Director at Access Now. 

He added that the Rules would in no way be compliant with the PDP Bill.

Access Now earlier said in a statement, that the social media rules, which were released along with guidelines to regulate over the top and streaming platforms expand the government’s reach.  

These rules include new provisions set by the executive branch, not authorised by the Indian Parliament, mandating new regulations that require online services providing news, current affairs content, and online curated content in India to register and regularly report to India’s Ministry of Information and Broadcasting, it added.