New MeitY Advisory Seeks Prompt Removal of Prohibited Content from Platforms

The Ministry of Electronics and Information Technology (MeitY) issued an advisory dated 3 September 2024 (Advisory) to ‘intermediaries’ emphasizing on the responsibility to take prompt action to remove any prohibited content from their platforms in order to meet due diligence obligations under the Information Technology Act, 2000 (IT Act) read with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Guidelines).

Under the IT Act read with Rule 3 (1) of the Intermediary Guidelines, an ‘intermediary’ (which typically includes players like telecom operators, social media companies, cloud-hosting providers, etc.) is required to ensure that no illegal content, (like information infringing intellectual property or other proprietary rights of another person) is hosted on its platform. Additionally, the ‘intermediary’ is required to remove or disable such information as early as possible, but not later than 36 hours of receiving a court order or an intimation from the Government or its agency in that regard. An ‘intermediary’ may also remove or disable access to information, data or communication link on a voluntary basis or on the basis of grievances received. Compliance with these due diligence steps is critical for preserving safe harbour against liability relating to third party content under the IT Act and Intermediary Guidelines.

Key highlights of the Advisory

Comments

In light of the Advisory, it is clear that the Government is intensifying its efforts to combat the spread of illegal content online. The Advisory emphasizes the need for intermediary platforms to act swiftly, using the Intermediary Guidelines timelines as only a maximum threshold. This proactive stance is crucial as emerging technologies increasingly facilitate the creation and dissemination of fake and prohibited content. As digital threats evolve, platforms must enhance their content moderation mechanisms and respond more effectively to mitigate risks and protect users. This approach not only underscores the importance of regulatory compliance but also highlights the need for ongoing adaptation to technological advancements in the fight against online misinformation and harmful content. However, it will have to be seen how the Advisory is received by intermediaries in view of the complex jurisprudence that has evolved in this regard in the past few years, and especially as many players have expressed concerns about assuming an adjudicatory or censorial function in identifying content that infringes a party’s intellectual property rights.

• Harsh Walia (Partner); Shobhit Chandra (Counsel) and Rupendra Gautam (Senior Associate)

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