THE LATEST IT RULES AND IT’S IMPLICATIONS

Reading time : 12 minutes

INTRODUCTION

The new rules are to be referred as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The notification was released by the Ministry of Electronics & Information Technology, Government of India on 25th Feb, 2021. The Central Government formulated these Rules in accordance with the authority granted to it through Sections 69A(2), 79(2)(c) and 87(2) of the Information Technology Act, 2000 in order to implement the provisions of the same.

The Rules mainly concern with these three areas[1]:

  1. Internet and social media intermediaries
  2. Digital News, and
  3. OTT (Over the Top) streaming services

Further, the Rules are divided into 3 parts:

  • Part I provides for the definitions in the Rules;
  • Part II provides for Due Diligence by intermediaries and Grievance Redressal Mechanism; – (to be administered by Ministry of Electronics and IT)
  • Part III provides for the Code of Ethics And Procedure And Safeguards in relation to digital/online media. – (to be administered by Ministry of Information and Broadcasting)

Earlier, the Information Technology (Intermediary Guidelines) Rules, 2011 were enacted by the Government but it was pertaining to intermediaries only. These Rules are in response of the number of Public Interest Litigations against social media violations and the crying need for more stringent regulations to address the same.

Ravi Shankar Prasad, Minister of Information Technology and Prakash Javadekar, Minister of Information and Broadcasting, said the basic essence of the Rules to be a “soft touch oversight mechanism” while publicly announcing the Rules in a press conference. 

In India, online content streamed on OTT platforms is easily accessible by the general public without much control as compared to the offline content available on television and movie theatres, etc. These Rules put forward a system of self- regulation for social media intermediaries and online content providers like Netflix, Amazon Prime, Hotstar, etc. This is in order to make sure that the laws of India in addition to its Constitutional provisions are always being adhered to.

Further through these Rules, the Central Government takes a step forward in belief and exercise of the right to disagree and criticize and aims to establish an elaborate complaint mechanism for redressal of public grievances related to social media as well as OTT platforms. Such apparatus has been non-existent in the country as of now.[2]

SOCIAL MEDIA INTERMEDIARIES

Social media intermediary refers to an intermediary whose main function is to facilitate online interaction between two or more users and to let them create, upload, share, disseminate, modify or access information using its services.[3]

It does not include intermediaries which primarily, –

  1. enables commercial or business oriented transactions; or
  2. provides access to internet or computer networks; or
  3. is in the nature of a search-engine, on-line encyclopaedia, online directory or suggestion tool, e-mail service or online storage service.

For a Social Media Intermediary to qualify as a Significant Social Media Intermediary, it must pass the threshold of registered users as notified by the Central Government. Recently, the Union Ministry of Electronics and Information Technology has notified this threshold as fifty lakhs registered users.[4]

DUE DILIGENCE BY INTERMEDIARIES

All intermediaries including Social Media Intermediary and Significant Social Media Intermediaries are bound to observe the Due Diligence guidelines mentioned in Part- II of the Rules, 2021. As per Rule 7, the intermediaries are exempted from any liability for any third- party information in accordance with Section 79 of the IT Act, given that they observe due diligence as laid down by the Central Government. 

The intermediary is required to publish the rules and regulations, privacy policy or user agreement for access by the public at large. These must be informing not to host, display, upload, modify, publish, transmit, store, update or share any information which is defamatory, obscene, pornographic or invasive to children’s or women’s safety, is inconsistent or contrary to the laws in force, infringes any proprietary rights and is patently false and untrue among other things specifically mentioned in the ten clauses of Rule 3(1)(b).

The intermediary must inform it’s users periodically (at least annually) of any change in the rules and regulations, privacy policy or user agreement and that in the case of any form of non- compliance by the users, the intermediary has the right to terminate the users’ access or usage rights and/or remove the non-compliant information. 

As per Rule 3(1)(d), the Intermediary shall not host, store or publish any unlawful information which is found against the interests and sovereignty of the State, upon receiving an order of a court or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the IT Act.

The intermediary shall retain any information collected by it for the purpose of registration of the user, for a period of one hundred and eighty days after the withdrawal or cancellation of the registration.

The intermediary shall take all reasonable steps to secure its system, computer resources and information contained therein following the reasonable security practices and procedures as prescribed in the IT Rules, 2011.

The intermediary is required to supply any information in its possession or assistance to the Government agency within seventy two hours of the receipt of an order (order must be in writing) for the purposes verification of identity, for cyber security reasons, etc. 

The intermediary is required to report cyber security incidents and share related information with the Indian Computer Emergency Response Team (CERT) in accordance with Rule 3(1)(l).

GRIEVANCE REDRESSAL MECHANISM

The guidelines regarding the redressal of grievances has been provided in Rule 3(2).

Under Clause (a), the intermediaries are required to publish the name as well as contact details of the Grievance Officer on its website or mobile based application, if any.  The mechanism by which any user may file a complaint against any violation of these Rules must also be made available. On filing of any complaint, the Grievance Officer must acknowledge it within twenty four hours as well as dispose off the same within fifteen days from the date of receipt. 

Clause (b) prescribes for the intermediary to essentially take all reasonable and practicable measures to remove or disable access to illicit content within 24 hours of receiving a complaint regarding a content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual.

On top of this, the Significant Social Media Intermediaries have certain additional Due Diligence measures as specified in Rule 4 to adhere to.

  • Appointment of a Chief Compliance Officer for ensuring compliance of the intermediary with the Act and will be made liable in proceedings in the event of non- compliance or ignorance of due diligence 
  • Appointment of a nodal contact person in order to ensure 24×7 coordination with law enforcement agencies
  • Appointment of a Resident Grievance Officer for redressal of grievances by the process so prescribed.
  • Publication of monthly compliance reports stating the details of complaints received and the action taken for the same.

CODE OF ETHICS

Part III contains the Rules which are applicable to publishers of news, current affairs content as well as online curated content and is to be administered by the Ministry of Information and Broadcasting, Government of India.

A three- tier structure has been decided upon under Rule 9 for tackling the grievances of people and to ensure that the entities observe and adhere to the Code of Ethics as prescribed by the Central Government.

  • Level- I: Self- regulation by publishers;

As under Rule 11, the publisher is required to establish a grievance redressal mechanism and appoint a Grievance Officer for the same. The publisher must also provide the contact details of the Grievance Officer as well as keep a check on their functioning.  

  • Level- II: Self- regulation by the self- regulating bodies of the publishers;

According to Rule 12, self- regulating bodies of are independent bodies of publishers consisting of not more than six members and is headed by a retired Supreme Court of High Court Judge or an independent eminent person from fields such as media, broadcasting, entertainment, etc. There may be more than one self- regulating bodies of publishers but it must get itself registered with the Ministry within thirty days of its constitution.

  • Level- III: Oversight mechanism by the Central Government.

Oversight Mechanism has been dealt under Rule 13. It is undertaken by the Ministry which must appoint an ‘Authorised Officer who is not below the rank of a Joint Secretary to the Central Government. The Ministry is also required to constitute an inter- departmental committee headed by the Authorised Officer for the purposes of hearing grievances as well as issuing guidance, advisories and directions to publishers.

Rule 10 provides for the furnishing and processing of grievances. Any person can bring any grievance related to the content published by the publisher via the grievance mechanism established by the producer in furtherance of Rule 11. The publisher must acknowledge the grievance of the complainant within twenty four hours of receipt. The complaint must be addressed and decided upon the publisher within fifteen days of registration of the complaint.

If the same is not done, the complaint gets further escalated to Level- II and is to be taken care of by the self- regulating body of which the publisher is a member. The complainant can also appeal to the self- regulation body within fifteen days of receiving such a decision by the publisher, if they are not satisfied. The complainant must be informed of the decision of the self-regulating body within 15 days along with the guidelines and/or advisories issued to the publisher, as the case maybe.

If the complainant is still not satisfied with the decision of the self- regulating body, they make appeal to the Oversight Mechanism within fifteen days of such decision.

ADVANTAGES

It’s no secret that internet and social media is a boon but it comes with its own disadvantages. The abuse of social media for the purposes of inducement for recruitment of terrorists, circulation of obscene content, spread of disharmony, financial frauds, incitement of violence, public order etc.[5] are at an all time increase.

The Rules provide a speedy and timely mechanism for redressal of grievances. Earlier, there has been no such system where the users could get their complaint registered and redressed. They were often left at the whimsical hands of the publishers and social media platforms. Moreover, the lack of transparency further added to the problem.

The three- tier Grievance Redressal Mechanism, proposed by these Rules, safeguards the interests of the viewers by guaranteeing that their complaint is acknowledged and addressed by the publisher and a timely decision is delivered on it. It equips the users of social media platforms to obtain accountability from the providers in case of infringement of their rights. It also imparts upon the victims the scope to further pursue their complaint and appeal to higher bodies of regulation in the event of them being dissatisfied with the present judgement.

The Central Government, through these Rules, grants paramount importance to publishers by permitting publishers to manage their content and handle grievances on their own. Much emphasis is given on self- regulation in grievance redressal mechanism. On one hand, this ensures that the creativity of the publisher and the freedom to enhance such artistic talent are not curtailed while on the other hand, it makes certain that the publishers are held accountable to the public as well.

Until now, the content streamed on OTT platforms have been comparatively less monitored and controlled than the content that’s available offline like cinema and television. The Rules, 2021 aim to bring all the content, whether online or offline on the same stance in matters of administration and regulation by the government. 

As expressed by the Government in its press release, the Rules have been enacted as a remedy to counter the spread of fake news as well as rising number of sexual offences being committed against women on social media day after day. It also sheds light on the alarming issue of pornography on social media and its effect on children and society as a whole and recommends for enabling identification of the first originator of such contents.[6] 

The Rules, taking a step forward towards ensuring online safety and dignity of users, specially women users holds intermediaries liable to remove or disable access within twenty four hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation including morphed images etc. Such a complaint can be filed either by the individual or by any other person on his/her behalf. This tackles the problem of publication of nudity/ sexual content without consent and is hailed as a great move.

CRITICISMS

In addition to Rules 3 and 4, an intermediary in relation to news and current affairs content, is required to follow additional due diligence as provided in Rule 5.  It gives the administration to track and access the first originator of any information or content. Such conception has taken place in order to curb fake news and illegal activities such as offences against the integrity and sovereignty of the State, etc.

According to the Rules, a judicial order or an order issued under Section 69 of IT is deemed necessary for the purpose of acquiring such information. Law enforcement agencies are known to easily break away from the judicial process by relying on decryption requests made under S. 69 of the IT Act, 2000, thereby undermining accountability and transparency principles.[7]

As expressed by cyber experts, this can be seen as a gross violation and breach of privacy agreements that almost all websites and mobile applications swear by.[8] It destroys the purpose of end-to-end encryption absolutely which was to make sure that no one else but only the true sender and recipient(s) are able to read and modify messages. Moreover, this power is prone to a great misuse at the fancies of the government given its wide and implausible radius of discretion. 

Further, these Rules are also seen as a barrier between Citizen’s Right to Freedom of Speech and Expression granted by Article 19 of the Indian Constitution. An inter- ministerial committee of bureaucrats has been granted the authority, by The Rules, 2021, to adjudicate on matters relating to free speech and journalistic freedoms. This allows the committee to interpret the situation in their own respective manner which might in turn lead to arbitrary decisions thereby putting the right to dissent in danger.

On top of this, the executive has been given the control to decide over the suitability of content and whether it should be published or blocked from the access of general public. This completely destroys the freedom of press especially when it comes to news content. The Oversight Mechanism to be operated by the Government enjoys the influence of last say in all matters relating to infringement of people’s right in this specific area. Such propositions can be perceived as ultra vires of the Constitution.

Significant Social Media Intermediaries have been given the option of automated filtering and taking down of content proactively falling into specific categories as mentioned under Rule 4(4) which also comes in the way of democratic notions of free speech. Moreover, these automated tools have limited efficiency as it often fails to detect images/videos with graphic content and the context in which they are used.[9]

A petition has also been filed by the Foundation for Independent Journalism, publisher of The Wire pleading that the new IT Rules of the Government should be struck down as it falls outside the purview of the Information Technology Act, 2000.

CONCLUSION

No wonder, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is an incredible measure towards addressing and undertake troubling situations which haven’t been thought on before. It brings forth a number of positive changes such as the publication of compliance reports, the mandatory provision for intermediaries to remove any non- consensual sexual content, the obligation to label content and so on.

Keeping this in mind, we cannot simply ignore the negative aspects of these Rules. This includes the tracking and tracing of media, the over and exclusive power given to the Ministry of Broadcasting as well as the inter- departmental committee constituted by it and further financial burden arising out of operational difficulties.

Therefore, it is on part of the government to acknowledge these drawbacks and introduce modifications accordingly in order for these Rules to be a success.   


[1]Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at:   https://www.medianama.com/2021/03/223-guide-all-you-need-to-know-about-the-new-it-rules-2021/ (last visited on 12/03/2021)

[2]Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at:  https://www.mondaq.com/india/social-media/1042586/information-technology-guidelines-for-intermediaries-and-digital-media-ethics-code-rules-2021 (last visited on 13/03/2021)

[3] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021,  RULE 2

[4] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at:   https://images.assettype.com/barandbench/2021-02/da6bb41f-8289-4148-9b99-308cf1ed21b6/Significant_Social_Media_Intermediary.pdf (last visited on 15/03/2021)

[5] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at:   https://www.pib.gov.in/PressReleseDetail.aspx?PRID=1700749 (last visited on 18/03/2021)

[6] Ibid.

[7] Criticism on Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, available at: https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021 (last visited on 20/03/2021)

[8] Supra 2 .

[9] Supra 7.

Author: ZOYA SHABBIR

Editor: Kanishka VaishSenior Editor, LexLife India.

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