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While growth in internet penetration in India has led to an upsurge in the number of social media users, it also poses risk of unlawful activities, such as the spread of misinformation, hate speech, and cyberthreats, and intermediaries are no longer neutral pipelines for correct information and data.

The question, therefore, is: should the intermediaries be held liable for unlawful content posted on their platforms by third parties and to what extent should they be prosecuted? Soon, India is expected to come up with rules to regulate social media platforms to mitigate the risks for internet consumers. But, should India transition from a “they didn’t know" to a “they should have known" standard?

Supratim Chakraborty, partner, Khaitan and Co., said entrepreneurs must also need to find out whether they fall under intermediaries because the definition of the word also posed a problem, with some clarity in recent times. While due diligence must be exercised by intermediaries, Chakraborty is of the view that they are still averse to it considering that tracing the originator is a problem if companies use end-to-end encryption.

He said social media intermediaries with 5 million registered users must appoint chief compliance officers, a nodal contact person and a resident grievance officer, and must understand Indian sensitivities to create a model around India.

Anushka Sharda, partner, Khaitan & Co., said appointment of a compliance officer may also lead to over-censorship as he may be the only person held responsible despite not being the decision-maker. Also, the 24-hour deadline to take down offensive content, may not be practically possible. She said there may not be a perfect solution to regulating social media intermediaries because tech will always outpace law, but hopes rules will continuously evolve to address the issues.

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