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On 25th February 2021, the Government of India notified in the official gazette, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (hereinafter, referred as ‘the rules’). The rules have been framed by the government in exercise of its powers as provided by Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act 2000, superseding the Information Technology (Intermediary Guidelines) Rules 2011. The rules, set in place by the Ministries of Electronics and Information Technology and Ministry of Information and Broadcasting, aim to “establish a soft-touch self-regulatory architecture and a Code of Ethics and three tier grievance redressal mechanism for news publishers and OTT Platforms and digital media.” While the rules are believed to have proposed a framework, which is progressive, liberal and contemporaneous by the government, they have sparked an ongoing debate over their possible implications over the fundamental way the internet is experienced in India.
STRUCTURE OF THE RULES
The rules issued, are in three parts. While Part I of the rules primarily provides for the definitions and context for a number of terms, Part II and Part III provide for rules and guidelines for the intermediaries and publishers of news and online curated content respectively.
Part II of the rules requires for “due diligence” to be undertaken by the intermediaries.. It also provides for the setting up of a grievance redressal mechanism. The rules are mandatory in nature, hence punishable under any law in force at the time including the Act and Indian Penal Code. This part shall be administered by the Ministry of Electronics and Information Technology (MeitY).
Part III of the rules sets forth a code of ethics and procedure, which is to be followed by the publishers of news and current affairs content and publishers of online curated content. It provides safeguards in relation to digital media and a three-tier grievance redressal structure. This part shall be administered by the Ministry of Information and Broadcasting.
RESPONSIBILITY OF DUE DILIGENCE FOR THE INTERMEDIARIES
“defamatory, obscene, pornographic, paedophilic” in nature or is intrusive of one’s privacy, information which is objectionable racially or ethnically, information which infringes the intellectual property rights of a person, information which may cause harm to child, information which is knowingly misleading and fosters false information as facts, information that threatens public order, the unity and sovereignty of the country or its friendly relations with other foreign states or is in anyway in contravention to laws in force at the time.
The rules also require the intermediaries to periodically inform their users of the consequences of non-compliance with its rules, which may include terminating the access or usage rights of the user or taking down the non compliant information.
The rules also require the intermediaries to stop hosting, storing or publishing any information in contravention to the law in force at the time, which may threaten the “interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above”, on attaining the knowledge of the same through a Government notification or an order of a court with competent jurisdiction within a strict time period of thirty six hours of receiving it. Additionally, the intermediaries are required to hold evidence for one hundred and eighty days, or any longer period of time as the court or the government may require, for investigative purposes.
Additional due diligence to be undertaken by significant social media intermediaries
Rule 2(v) of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 distinguishes significant social media intermediaries from social media intermediaries as social media intermediaries which have a higher number of registered users than the threshold set by the Central Government. This distinction is made due to massive number of users and the kind of content these intermediaries process, hence the rules lay emphasis on additional due diligence to be undertaken by them. The significant social media intermediaries are required to make the following appointments within three months of the publication the rules :
- Chief Compliance Officer, who shall ensure compliance to the Rules, and henceforth be liable in any action due to non compliance to the said rules.
- Nodal Officer, who shall be responsible to correspond with the law enforcement agencies at all times.
- Resident Grievance Officer, who shall be responsible for the duties under Rule 3(2)(b).
There are rules set in place for a significant social media intermediary, providing messaging services, to enable identification of a first originator of any information as maybe required by an order of the court or any competent authority which issues an order under Section 69 of Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, in case the said information is problematic. The order shall be passed pursuant to the aim of prevention, persecution or punishment for offences against the State, sexual offences or any such grievous offences. However, this measure is to be of the last resort, only after exhausting the use of less intrusive options. The rules also enable the significant social media intermediaries to remove content in violation of clause (b) of sub-rule (1) of rule 3 on their volition, provided the user sharing such content is notified of the reason for such action, is allowed to raise their dispute against the removal in a stipulated time and the Resident Grievance Officer oversees the dispute resolution mechanism .
Non compliance to the rules by the intermediary would result in non applicability of the provisions Section 79(1), which acts as safe harbour, thereby making them liable for punishment under the Act and the Indian Penal Code.
GRIEVANCE REDRESSAL MECHANISM TO SAFEGUARD DIGITAL MEDIA
Part III of the rules is applicable to publishers of content consisting of news and current affairs and publishers of curated online content. The rules under this Part are in addition to the provision of any laws in force any their remedies including Information Technology (Procedure and Safeguards for Blocking of Access of Information by the Public) Rules, 2009. The rules provide for a three tiered grievance redressal structure, to ensure the compliance to the code of ethics by the publishers, consisting of:
- Level I: Self-regulation by the publishers
- Level II: Self-regulation by the self-regulating bodies of the publishers
- Level III: Oversight mechanism by the Central Government
The rules at Level I, that is self regulation mechanism by the publishers, require them to appoint a Grievance Officer who will be responsible for the redressal of all grievances received by the publisher and ensure that all such grievances are resolved by the Grievance Officer within fifteen days. The publisher is also required to be a member of the self regulating body of the publishers.
At Level II, there has to be an independent self regulating body set up of which the publisher is a part. The said body must be headed either by a retired judge of the Supreme Court or High Court or an eminent person in the field of media, broadcasting or entertainment and must consist of not six other such members who are experts in the mentioned fields. If the redressal procedure at Level I fails to be completed within fifteen days, the matter would be escalated to this self regulating body. If the complainant is dissatisfied with the decision of the publisher, the matter may be referred to this body by means of appeal, within a period of fifteen days. The self regulating body is required to guide the publishers towards compliance to the code of ethics and address the grievances within a period of fifteen days. While disposing grievances, it is also empowered to issue warning, censuring the publisher, requiring apology, modifying content descriptors or referring the matter to the Ministry for Oversight Mechanism to take appropriate measures. If the complainant is further unsatisfied by the resolve of the self regulating body, the matter may be appealed to the Oversight Mechanism within a period of fifteen days.
The Oversight Mechanism, set up by the Ministry of Information and Broadcasting, shall facilitate compliance to the code of ethics by the self regulating bodies as well as by the publishers. It shall create an Inter Departmental Committee, consisting of members of Ministries under the Government of India, for purpose of resolving grievances. Rule 14(5) empowers the said committee with powers to address the complaints in a suitable manner.
CODE OF ETHICS
All the Rules explained so far are ultimately brought together to context by the Code of Ethics, laid down in the Appendix attached to these rules. The Code of Ethics lays down various general principles for publishers of online curated content and guidelines for content classification. The publishers are required not to transmit or publish any content prohibited by the law or any court of competent jurisdiction. This includes any content which threatens the sovereignty and integrity of the country, security of the State, the country’s foreign relations or can incite violence or disturb public order. The publishers are required to be cautious and sensitive while featuring the nuances of any religious or cultural group, keep in mind the multi racial and multi religious context.
The Code of Ethics also lays down the guidelines to classify online curated content, based on the nature of its content. It may be classified on the basis of its theme and message, violence, nudity, sexual content, drugs and substance abuse or horror. These parameters can be modified from time to time by the Ministry of Information & Broadcasting. The content can be classified into the following categories:
- “U” rating for content which may be suitable for all, regardless of age.
- “U/A 7+” rating for content that may be suitable for viewing for all persons above the age of 7, and with parental guidance for persons below the age of 7 years.
- “U/A 13+” rating for content which requires parental guidance for viewers below the age of 13.
- “U/A 16+” rating for content which requires parental guidance for viewers below the age of 16.
- “A” rating for content solely reserved for viewing by adults.
The publishers are required to prominently display the classification rating of their content with a content descriptor, informing the viewer about its nature preemptively. They are required to provide users with mechanisms such as parental locks to ensure access control. In the same manner, they are also required to establish an age verification mechanism of user for content with an “A” rating.
ACCLAMATION OF THE RULES
The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, have been praised as a liberal and progressive move as they make an effort towards making the internet a safer place for women by protection against progression of sexual offences on social networking sites. The rule mandates an intermediary to remove any non consensual intimate imagery, within a period of twenty four hours.
The rules have been acclaimed as a rather transparent system. One of the positive steps towards transparency is the publication of compliance reports. This would ensure transparency in content moderation practices of online content companies. It would also enhance the efficiency of content moderation tools and technologies by making data publicly available.
This system of self regulation as compared to the pre certification mechanisms existent in India is a rather liberal approach in terms of content classification. It puts India at par with many other countries such Singapore, Australia and The United Kingdom, where too self regulation of Over-the-Top content (OTT) is acceptable. This self regulating mechanism in no way imposes censorship over the content by allowing self classification by the creators themselves.
Also read: OTT PLATFORMS IN INDIA: UNREGULATED NO MORE
CRITICISM OF THE RULES
While the Rules have been lauded by some, there are many who believe that these rules may significantly affect the fundamental right to privacy and freedom of speech and expression.
Firstly, the rules with regards to the “publisher of news and current affairs content”, its vague definition can cause arbitrariness. Many legal experts are of the opinion that clubbing online news content with those governed under the IT Act is ultra vires the act as imposition of criminal liability under the IT Rules 2021 would be excessive of the rule-making power vested in the central government under Section 69A of the Act.
Another important criticism is of enabling significant social media intermediaries providing messaging services access the originator of any information. Even though, this step of the government maybe well intentioned and an effort towards curbing the spread of fake news, it might eventually end up the overriding of the end-to-end encryption. It can cause major privacy breach, and even the formation of a surveillance state.
In the present state of affairs, where there is a constantly growing number of internet users in the country, there is a clear need for regulation which is not only within the constitutional framework but also furthers the fundamental rights of the citizen.
 https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1700749 ( last visited on 19th March,2021)
 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, Rule 8(1)
 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, Rule. 3(1)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 3(1)(b)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 3(1)(c)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 3(1)(d)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 4(1)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 4(2)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 4(8)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 9(3)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 12
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 12(2)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 14(1)
 Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, Rule 3(2)(a)
 https://indianexpress.com/article/opinion/columns/social-media-it-act-new-rules-modi-govt-control-digital-content-7218741/ (last visited on March,19, 2021)
Author: AISHWARYA AGARWAL
Editor: Kanishka Vaish, Senior Editor, LexLife India.