Much has been said and speculated about what happens when an intermediary does not comply with the Intermediary Rules. Forbes India spoke to multiple experts to understand what it means
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Assuming a social media company with more than 50 lakh users—Chatterbook—has not complied with the Intermediary Rules.
Step 1: Two users post videos showing targeted violence on Chatterbook, but Chatterbook does not proactively take down this content. Nothing happens to Chatterbook at this stage. Step 2: Alice files an FIR against the two users of Chatterbook and Chatterbook itself for posting hate speech. Step 3: Unlike with safe harbour, when Chatterbook could have told the police on being summoned that it is protected by safe harbour, its senior employees—in all likelihood chief compliance officer and the nodal contact person, if Chatterbook has hired them—now have to go to the police station to answer questions. Step 4: Matter is taken up in the local court where Chatterbook attempts to avail legal immunity under safe harbour. Step 5: The judge could either agree with Chatterbook and say it still has safe harbour or it could hold Chatterbook responsible. In the latter case, the court will have to categorically state that Chatterbook has lost safe harbour for not complying with the Intermediary Rules. Ergo, the determination is made by the courts.What is the problem then? Effectively status quo is maintained, is it not? Not really. Earlier, if Twitter or Facebook were named in FIRs or court cases, they could just claim immunity under safe harbour. If the courts decree they have lost safe harbour as a legal defence, they have to actually fight against the charges levelled against them under the Indian Penal Code or other Indian laws, as the case may be. Much of it will have to be determined by the courts, says Tiwari. The specific case of the Ghaziabad police filing an FIR against Twitter is a tricky one because according to all experts Forbes India spoke to, the police cannot decide whether an intermediary has lost safe harbour as its legal defence.