AN EXTENSIVE CRITICAL ANALYSIS OF DRAFT, IT RULES 2021

The present study aims at analyzing the IT Rules, 2021, set by the government in the month of March-2021. The guidelines and the rules set for the intermediaries and digital media under the present IT Rules are highly controversial and now it has become an urge to analyze its impact on various sectors of the society. The author through this paper has tried to determine the kind of laws and guidelines that are required for the regulation of content on internet. At the same time, the paper also highlights the legal, political and social and the fallout of the present draft, IT Rules 2021. The author through this paper has extensively discussed the major drawbacks, the outcome and the impact that such rules can have on the intermediaries, digital media, society and individuals. The major key points of the IT Rules 2021 are discussed in detail and the paper also depicts the political impact of such rules that could eventually affect the rights of people and democracy of the nation. The author has also made an attempt to identify the loopholes of the rules and suggest possible changes to make it better and effective.

  1. INTODUCTION 

Indian government recently came up with new set of rules and guidelines, IT Rules 2021, to regulate the content on the internet, to lay down guidelines for intermediaries and digital media and to govern the social media platforms in the country. There are various reasons cited by the government behind coming up with such rules. Some of them include monitoring harmful content on internet that could otherwise have an adverse impact on the mindset of the people and could even hamper the growth of the country, tracking down the first originator of any mischief and  voluntary verification of users. The new set of rules and regulations would also regulate social media platforms, OTT platforms, messaging services and various news portals as well. The Information Technology Rules of 2021 has been enacted by the Central Government under the powers conferred to it by Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, with thorough coordination with the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting.[1] The present rules are in response to the protests and criticism against the government for regulation of content present on the internet. Various contents displayed on OTT platforms have also been criticized by the people and there developed an urge to come up with laws that could monitor such platforms and regulate the content that are being streamed. As per the new rules, even foreign tech giants that have been operating in the country like Facebook, Whatsapp, Twitter, Netflix, Amazon etc. will have to abide by the guidelines and the ethics laid down.  It emphasizes on the need of various social media intermediaries and online content providers, to strictly comply with the Constitutional and domestic laws of India. Until now, India had moderate regulatory framework for the social media and other platforms that provided the owners to display anything without any stringent actions being taken against them. Through this rule, the government has made an attempt to monitor the actions of such intermediaries and includes measures such as appointing a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer for all social media intermediaries, active monitoring of harmful content, verification of users etc. All other rules and guidelines are further discussed in detail in the paper.

  1. BACKGROUND

The country has been witnessing wide protests due to various contents on the internet since past few decades. Regulation of content on OTT platforms and establishment of a monitoring and a regulatory body to look after the streamers and social media platforms have been called in question many a times by the apex court of the country, Supreme Court itself. In the year 2018, Supreme Court observed that the Government of India must frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and other related sites in content hosting platforms and other applications.Further in the year 2020, an Ad-hoc committee of the Rajya Sabha laid its report after studying the alarming issue of pornography on social media and its harmful effect on children and society as a whole and recommended for enabling identification of the first originator of such contents. The present IT rules 2021 has been drafted keeping in mind all the prior decisions and as per the recommendations of the concerned authorities. The various reports suggest that regulating the content on OTT Platforms and other social media was an urge to protect women from various crimes, being inflicted on them because of such contents. Further, it was also mandated to prevent children from seeing such contents that can have adverse impact on their mental growth.

  1. KEY PONITS : IT RULES 2021

The Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021 is mainly meant for social media and OTT Platforms. The various guidelines and the measures to be adopted by such platforms and the companies are mentioned herein :

CATEGORIZATION OF SOCIAL MEDIA :

The social media platform intermediaries, based on the number of users have been broadly categorized into two categories :

  1. Social Media Intermediaries : Such social media platforms that do not have more than 50 lakh registered users would fall under this category.
  2. Significant Social Media Intermediaries : Those social media platforms that have more than 50 lakh registered users would come under significant social media intermediaries, the guidelines would be more stringent on them and they would be subject to maximum compliances.[2]

DUE DELIGENCE BY INTERMEDIARIES

The guidelines in relation to due diligence while discharging the duties under the act is meant for both social media intermediaries as well as significant social media intermediaries.[3]

It would be the responsibility of the intermediaries to publish on their website the rules, regulations and other privacy policies for anyone to access their resources.[4] The rule further states that it should be clearly mentioned by the intermediaries through their website that the users are not allowed to publish or share any content that does not belong to them, or is obscene, unethical or objectionable, could encourage various offences or is contrary to the laws of  India.[5]

Notifying the Users

Apart from this, the intermediaries would be under the obligation of periodically reminding users of its policies and that in case of any inconsistence by any user, the right of such user to access could be terminated.[6] The intermediary shall also publish the name of grievance officer, his contact details and the procedure of making their complaint with regard to any content which is in violation of the present rule.[7] 

Action to be taken by the Intermediaries

The intermediaries upon receiving information of any order by a court of competent jurisdiction to remove or prevent publishing of certain content, should immediately take action to that effect.[8] The intermediaries would be provided with a strict time limit of 36 hours to provide any such content and after the removal of content it has to be preserved for 180 days for investigation purpose.[9] Further, on receiving a complaint from any individual regarding removal of a specific content that is objectionable under the categories mentioned in the rules, the intermediaries shall take all reasonable measures to remove such content.[10]

ADDITIONAL DUE DELIGENCE BY THE INTERMEDIARIES

Unlike the due diligence guidelines to be observed both by social media intermediaries and significant social media intermediaries, the additional due diligence has its scope only on significant social media intermediaries.[11]

The significant social media intermediaries are under an obligation to :

  1. Appoint a Chief Compliance Officer, who will have the responsibility of ensuring compliance and oversight of intermediary functions.[12]
  2. Appoint a Nodal Person of Contact, who would be in contact with law enforcement agencies to ensure compliance of their orders.[13]
  3. Appoint a Resident Governor Officer, responsible for functions as mentioned in Rule 4(1)(n).[14]
  4. Publish periodically, all the compliance reports every six months and it should contain all the details along with the content that was removed or disabled, or whatever action that was taken by thereupon.[15]

GRIEVANCE REDRESSAL MECHANISM :

The Grievance Officer appointed shall have the responsibility of acknowledging the complaint within 24 hours and redress it within 15 days from its receipt. An Online Grievance Portal, established by the Ministry within three months of the commencement of the rules, would act as the central repository for accepting and disposing of grievances, with respect to the Code of Ethics, as per Rule 9(1).[16] In pursuance to this, the Rules provides a three-tiered grievance mechanism, consisting of:

  1. Level I: Self-regulation by the applicable entity
  2. Level II: Self-regulation by the self-regulating bodies of the applicable entities
  3. Level III: Oversight mechanism by the Central Government

The rules apart from all this also mandates the social media intermediaries to have a physical address in India , which could be a great trouble for the foreign companies.

MONITORING HARMFUL CONTENT

The intermediaries are now required to deploy technological measures to identify and authenticate information depicting rape, sexual abuse or any other content that has previously been removed. Such monitoring must be periodically reviewed.

VERIFICATION OF USERS

It is now an obligation for significant social media intermediaries to provide a mechanism for verification of its users which can be done through users account or mobile numbers. Such verification would be voluntary and a if a platform uses personal information of  users as per its policy then the users would have no option but to consent to it. The information provided by the user for verification would become part of data under the privacy policy which the platforms are entitled to collect.

IDENTIFICATION OF FIRST ORIGINATOR

Rule 5(2)[17] provides an additional responsibility on significant social media intermediaries involved in providing messaging services to assist the law enforcement agencies to identify and track the first originator of any contentious or problematic information. This can only be executed through an order of a competent court or the Competent Authority under section 69 of the Act. This power can only be exercised in order to curb any offence threatening the integrity or security of the State, inciting the commission of rape, child sexual abuse or other grievous offences. However, this may not be resorted to on the availability of less intrusive means and must be employed as a measure of last resort.

SELF REGULATORY BODY

The IT Rules, 2021 necessitates the establishment of more self regulatory bodies of publishers, that could be headed by retired judges of a High Court , Supreme Court or any other eminent person. Such body should not have more than six members and the body have to be registered under the Ministry of Information and Broadcasting. The body shall have the responsibility of ensuring that the publishers strictly adhere to the Code of Ethics as laid down under the rule.

  1. CRITICSM : LEGAL, POLITICAL, SOCIAL AND COMMERCIAL FALLOUT

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 that the government has recently laid down for various social media and OTT Platforms is highly controversial with different arguments both for its support and against.

LEGAL FALLOUT

 On extensive study of the rules, it can be deduced that the guidelines that have been set for the intermediaries have certain loopholes that can be a great obstacle for the companies as well as the people. The idea of identifying the first originator of the message would override end-to-end encryption policy of various social media intermediaries. The policy of tracking first originator of a message though would help in identifying the main culprit in case of any offence, can excessively be misused against any person. Apart from this, people would also be reluctant to express their views, which would ultimately hinder free flow of information and would deprive the citizens of their fundamental right of freedom of speech and expression. The Rules suffer from an excessive delegation of powers. As an example, the Rules have established a non-judicial adjudicatory process to resolve grievances regarding content published by Digital News Media and OTTs. They have also created an adjudicatory body which is the “oversight committee”. This is even though the IT Act does not specifically empower the Government to do so. This non-judicial adjudicatory process has been discussed in detail below.[18]

The regulatory guidelines as  laid down under  the IT Rules, 2021 hinders the free spread of information. People’s right of free speech, right of communication and right to know are violated. This breaches the very spirit of democracy and if it goes on it can even lead to elimination of democracy and establishment of dictatorship in the country. It has been laid down in number of landmark judgements given by Supreme Court that democracy comes within the basic structure of the constitution and any attempt to harm the basic structure in itself is unconstitutional, illegal and void.

POLITICAL FALLOUT

The complete control of the social media, digital news and OTT Platforms in the hands of the government providing them such a wide discretionary power could be blatantly misused by the political party in.  The main reason behind the right of freedom of speech and expression is to provide people the right to express their grievances and put forth their opinion if they are dissatisfied with the policies of the government. It is intended to provide right information and keep a check on the actions of the government. As per the IT Rules 2021, the government would have all power to remove any content which it thinks is unacceptable. The government may exclude the speeches and information opposed to its authority and may manipulate the power to hide any information that is disadvantageous to its policies. The government may silence anyone who doubts them and can easily limit the power of political opponents, which would evrentually hamper the development of the country.

SOCIAL FALLOUT

The rule is a blatant attack on people’s privacy. The policy of tracking first originator is completely against the end to end encryption. No one wants undue websites such as pornographic websites and other objectionable content to be available. However, the real issues limited by the present rules go far beyond the regime. Such, rules can adversely affect the growth of the society and correct changes must be made to it in order to promote development and progress of the nation.

  • CONCLUSION

The public today is looking for platforms that bring out the truth of society, deal with socio-political issues, provide regional varities and most importantly provide us right information and realities that are going on in the country. Regulation of content must be done but giving complete power to remove any content , attacking on public’s privacy is something not acceptable. The government is free to ban and block such undue websites and content that can have bad impact on the society but taking complete control over the internet is violation of fundamental right of free speech and expression and such issues must be resolved at the earliest.

  • REFERENCE
  1. Information Technology (Guidelines for Intermediaries And Digital Media Ethics Code) Rules, 2021.
  2. The Information Technology (Intermediaries guidelines) Rules, 2011.
  3.  Latest Draft Intermediary Rules: Fixing big tech, by breaking our digital rights.
  4. https://www.newindianexpress.com/nation/2021/feb/26/it-rules-2021-users-will-no-longer-have-blanket-privacy-2269143.html.
  5. https://internetfreedom.in/intermediaries-rules-2021/.

 

[2] https://www.newindianexpress.com/nation/2021/feb/26/it-rules-2021-users-will-no-longer-have-blanket-privacy-2269143.html.

[3] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 3.

[4] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 4(1) (a).

[5] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021,  Rule 4(1)(b).

[6] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 4(1)(c ).

[7] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 4(1)(n).

[8] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021,  Rule 4(1) (d).

[9] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 4(1)(h).

[10] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021,Rule 4(1)(p).

[11] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 5(1).

[12] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 5(1)(a).

[13] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 5(1)(b).

[14] Information Technology  (Guidelines for intermediaries and digital media ethics code) Rules, 2021.

[15] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021, Rule 5(1)(d).

[16]  Information Technology  (Guidelines for intermediaries and digital media ethics code) Rules, 2021.

[17] Information Technology (Guidelines for intermediaries and digital media ethics code) Rules,2021.

[18] https://internetfreedom.in/intermediaries-rules-2021/.

Author: Manshi Sinha

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