Overview of the New Information Technology (IT)Rules, Boon or Bane?

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According to the IT Minister, Ravi Shankar Prasad, “Social media is welcome to do business in India… they have got good business. They have got a good number of users and also empowered ordinary Indians. But users must also be given a proper forum for the resolution of their grievances in a time-bound manner against abuse and misuse of social media.”

The government had concerns regarding the content which is displayed on Digital Media and OTT platforms, a number of cases and public interest litigation (PIL) were also filed regarding the regulation for such content. The Supreme Court back in 2018 had observed that the government might impose necessary guidelines to elimate pornography, rape or any such content displayed on various platforms. Recently the government announced the new Information Technology (IT) Rules, 2021 which have been framed under section 87(2) of the IT Act, 2000 and superseded the IT Rules, 2011. They claimed to be known as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.These rules provide new guidelines for over the top (OTT) and social media platforms. According to the Press Information Bureau (PIB), these rules have been formulated keeping in mind the importance of freedom of speech.

Synopsis of the New IT Rules 2021

These rules are first of its kind to bring social media platforms under the IT Act. Under the new IT Rules, a grievance mechanism system will be exhibited through which social media users can address their grievances. The social media platforms will be required to follow the laws of the Indian Constitution. For any unlawful content portrayed, it would be required by the social media giants to take down such content within the given time framed as notified by a government agency or court order. Part two and three of the IT rules shall be administered by the Ministry of Electronics, IT and Ministry of Information and Broadcasting respectively. These new rules are applicable to OTT, Digital Media Platforms and Social Media Intermediaries. They reiterate on protection of children and women from sexual offences on social media platforms.

Need for implementing such rules for Social Media:

  • These rules create a quick grievance redressal mechanism system which doesn’t exist as of yet
  • The dignity of many women and children are threatened by blackmail on social media platforms
  • To curb fake news from disseminating
  • To control content which claims to be defamatory, abusive or hurts the religious sentiments of people.

The New Information Technology Rules (IT), 2021

The social media platforms have been divided into two parts based on the number of users, social media intermediaries and significant social media intermediaries. If due diligence is not followed by the intermediary the safe harbour provisions will not be applied to them. Under the Section 79 of the IT Act, the safe harbour provisions have been defined as immunity given to social media intermediaries from legal prosecution of any content portrayed on their platforms.

Due diligence for All intermediaries-

  • Rule 4 enlists certain due diligence which an intermediary must follow, these are as stated:-
  • An intermediary must publish either on its website or the application the rules and regulations, privacy policy and user agreements for access or usage by any person. The intermediary shall inform the user of the computer resource not to upload, display, host, publish, modify, update, store or share any of the following kind of information-
  • Is harmful for the minors
  • Belongs to another person
  • Impersonates someone
  • Is of any defamatory, podophilic, pornographic, invading ones privacy or in void with any of the laws of the land
  • Causes any infringement of any Intellectual property rights(IPR)
  • Deceiving the original message
  • Puts in jeopardythe integrity, sovereignty, defense,security of the country, friendly relation worth other countries, public order or results in violation of any cognizable offence.
  • The users must be informed about the privacy policy, rules and regulations, user agreement at least once a year or whenever the policies are changed. Non compliance of such obligations would lead to termination of users access or usage rights.
  • Grievance Redressal Mechanism For Intermediaries- Intermediaries need to appoint a Grievance officer to deal with complaints and the grievance officer shall acknowledge it within 24 hours and resolve the problem within 15 days from the receipt.
  • If any content that reveals the private parts of individuals or exposes nudity in a sexual way then an individual or any other person on their behalf can file a complaint and the intermediaries shall then remove such content within 24 hours of the receipt of the complaint.
  • An intermediary when notified for removal of unlawful content by receiving court order or a notice by a government agency shall not host or publish such content which is prohibited under the law.  

Additional due diligence for Significant social media intermediaries

  • The Significant social media intermediaries shall enable identification of the first originator of information for the following reasons- For the purpose of punishment, investigation of an offence relating to sovereignty, security, public order, rape, sexual abuse of juveniles etc This move would help keep track of fake news creator.
  • They shall appoint a Nodal Contact person, Resident Grievance Officer and A chief Compliance Officer and all of them should be residents of India. The nodal contact person would coordinate with the law enforcement ageny, the resident grievance officer would take care of all the functions together and lastly the chief compliance officer would ensure the compliance of the rules and oversight the functions of the intermediaries.
  • The Signiant social media intermediaries shall maintain a monthly compliance report in which they shall state the details of the complaints received and the action taken to resolved such complaints. They shall also mentioned the details of the contents removed.
  • First Originator Rule- In order to restrain any offence such as child abuse, rape, threating the security of the country etc, The Significant social media intermediaries must assist the law enforcement in providing messaging services in order to identify and track the first originator. This can be only done through a court order or a competent authority under section 69 of the act.
  • Verification of users- The users of significant social media must voluntarily verify themselves, this verification is taken on the basis of their number or account. All the accounts that have been verified must display a mark of verification which should be visible to his or her credentials.

Rules for OTT, Digital Media and New Publishing Platforms:

For OTT-

Classification Of Content-

The OTT platforms would classify the content into 5 categories- U( UNIVERSAL),U/A7+,U/A13+,U/A16+ and A(Adult)

  • ‘U’ rating for content suitable for children and people of all ages
  • ‘U/A 7+’ for content that can only be viewed by a person below the age of 7 years with parental guidance
  • ‘U/A 13+’ which requires parental guidance for viewers below the age of 13 years
  • ‘U/A 16+’ for persons below 16 years requiring parental guidance, and
  • ‘A’ for content solely reserved for viewing by adults

Further classifications may be made on the basis of violence, sex, drug abuse, themes etc.  These classification ratings must be displayed in a conspicuous and unambiguous manner and place, allowing the user to be aware and informed.

Parental lock- Parental locks would be required for content which is U/A13+ or higher. There would be a age verification mechanism for content which is classified as A(Adult)

The OTT platforms have to follow the laws of the land they are broadcasting it in and set up a grievance redressal mechanism.

News Publishers

  • Publishers of news on digital media should observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act 1995 to povide a level playing field between offline and online ditigal media.

Code of Ethics and Safeguards for Digital/ Online Media-

These rules shall be applicable to the following entities:

  • Publishers of News/Current affairs
  • Intermediaries which transmit the news/current affairs
  • Publishers of online curated content
  • Intermediaries which transmit the online curated content

Grievance Redressal Mechanism

The ministry will establish an online grievance redressal mechanism within three months for the commencement of the rules, it would act as the central repository for addressing grievances with respect to code of ethics. There would be three levels for grievance redressal with different levels of rules and regulations:

Level 1- Self regulation by applicable entities

The entity shall establish a grievance redressal mechanism and shall  appoint a grievance redressal officer in India who shall be responsible for the redressal mechanism. For every complain received the officer shall take action within 15 days. When a grievance relating to code of ethics is received, the officer shall within 15 days shall communicate and record the decision on the grievance portal. The entity shall classify the online curated content based on a certificate which is granted as per the schedule. Such a certification will be based on the content portrayed such as its impact, target audience etc.

Level2- Self regulation by the self regulation bodies of applicable entitles

If the grievance does not get resolved within 15 days then the matter shall be appealed to the self regulating bodies, of which the entity is a member. There may be one or more self regulatory bodies of entitles and such a body shall be registered with the ministry of Information and broadcasting

The self regulatory body shall be headed by a retired judge of the supreme court, high court or an independent eminent person. Such a body cannot have more than six members. Such a body will address grievances with 15 days.

The self regulating body can issue warnings, reclassify the rating of an online content, censoring, modify the content or refer the matter to the oversight mechanism.

Level3- Oversight mechanism

The oversight mechanism shall be formed by the ministry of information and broadcasting.

It shall established an inter departmental committee for the hearing of grievance and shall publish a charter for self regulation bodies. This committee would consist of presentative from ministry of information and broadcasting, ministry of law and justice, ministry of women and child development or other related minsters as mentioned.

Inter Departmental committee-

An inter departmental committee shall be constituted by the IT ministry and it shall consist of:

  1. Ministry of law and justice
  2. Ministry of home affairs
  3. Ministry of information  and broadcasting
  4. Ministry of women and child development
  5. Ministry of electronics and information technology
  6. Ministry of defence
  7. Ministry of external affairs
  8. Indian Computer Emergency  response Team
  9. Such other Minsters and organizations, including domain experts that it may decide

Criticism

  • The media fraternity has condemn the new IT rules claiming that they deprive the right of freedom of speech. The power given to the the MIB to decide the content which is to be aired or blocked hinders freedom of speech and expression.
  • Through the oversight mechanism the executive can decide the suitability of the content published by media, this in turn is an unprecedented move that may have acted ultra vires of the constitution.
  • The user’s right to privacy is violated when social media intermediaries would trace the first originator of the message, tracking the first originator would entail storing sensitive information or breaking end-to-end encryption protocol. If the message originator resides outside India then to track the person would turn out to be more complicated.
  • While many laud the steps to mitigate and penalise child sexual abuse online, some worry that the lack of nuanced automated tools to filter material could have a deleterious effect on free speech. 
  • The social media platforms enable the deprived citizens, lacking resources, to raise their voice, be heard, displayed their creativity and share their views on the functioning of the government. The IT rules would might obstruct the these rights.

Importance:

  • To curb the spread of fake news
  • To protect the dignity of women by preventing morphed images and contents of women to be shared
  • The use of defamatory, abusive language and obscene content which disrespects the religious sentiments of people are growing
  • To curb the increasing misuse of social media by criminals which are brought under the law enforcement agencies
  • For the first time a grievance redressal mechanism would exist where ordinary users of social and  OTT platforms can address their issues and get it redressed within a defined timeline.
  • The rules address the growing concerns around lack of transparency, accountability and rights of users related to digital media

Reference:

https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

https://www.mondaq.com/india/social-media/1042586/information-technology-guidelines-for-intermediaries-and-digital-media-ethics-code-rules-2021

https://www.livelaw.in/top-stories/supreme-court-incomprehensible-manner-judgments-of-high-courts-mr-shah-171082?infinitescroll=1

https://www.jagranjosh.com/general-knowledge/explained-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-1614677324-1

https://www.drishtiias.com/daily-updates/daily-news-analysis/new-it-rules-2021

Author: SHASHANK ROHIRA

Editor: Kanishka VaishSenior Editor, LexLife India.

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