India’s new IT rules for intermediaries: Information Technology Rules, 2021

Context:

Social media giant Facebook said it aimed to comply with the provisions of India’s new IT rules of intermediaries, which come into effect on 26^th May 2021.

The Ministry of Electronics and Information Technology has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in February 2021.

Relevance:

GS-II: Polity and Governance (Government Policies & Interventions, Issues arising out of the design and implementation of such policies)

Dimensions of the Article:

1. Salient Features of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
2. Digital Media Ethics Code Relating to Digital Media and OTT Platforms to be Administered by Ministry of Information and Broadcasting:
3. Background to the Genesis of these new rules
4. Rationale and Justification for New Guidelines
5. Issues with the New Rules

Salient Features of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

1. Due Diligence to Be Followed by Intermediaries: The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
2. Grievance Redressal Mechanism: The Rules seek to empower the users by mandating the intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving resolving complaints from the users or victims. Intermediaries shall appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officer. Grievance Officer shall acknowledge the complaint within 24 hours and resolve it within fifteen days from its receipt.
3. Ensuring Online Safety and Dignity of Users, Especially Women Users: Intermediaries shall remove or disable access withing 24 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.
4. Two Categories of Social Media Intermediaries: To encourage innovations and enable growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirement, the Rules make a distinction between 1: Social Media Intermediaries and 2: Significant Social Media Intermediaries. This distinction is based on the number of users on the social media platform. Government is empowered to notify the threshold of user base that will distinguish between social media intermediaries and significant social media intermediaries. The Rules require the
5. Significant Social Media Intermediaries To follow certain additional due diligence. This Additional Due Diligence to be Followed by Significant Social Media Intermediary are to:
   1. Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules,
   2. Appoint a Nodal Contact Person for 24×7 coordination with law enforcement agencies,
   3. Appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism.
   4. Publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary.
   5. Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.
   6. Significant social media intermediary shall have a physical contact address in India published on its website or mobile app or both.
6. Voluntary User Verification Mechanism: Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with demonstrable and visible mark of verification.
7. Giving Users an Opportunity to be Heard: In cases where the significant social media intermediaries removes or disables access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users must be provided an adequate and reasonable opportunity to dispute the action taken by the intermediary.
8. Removal of Unlawful Information: An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.

Digital Media Ethics Code Relating to Digital Media and OTT Platforms to be Administered by Ministry of Information and Broadcasting:

• There have been widespread concerns about issues relating to digital contents both on digital media and OTT platforms. Civil Society, film makers, political leaders including Chief Minister, trade organizations and associations have all voiced their concerns and highlighted the imperative need for an appropriate institutional mechanism.
• The Government also received many complaints from civil society and parents requesting interventions. There were many court proceedings in the Supreme Court and High Courts, where courts also urged the Government to take suitable measures.
• Since the matter relates to digital platforms, therefore, a conscious decision was taken that issues relating to digital media and OTT and other creative programmes on Internet shall be administered by the Ministry of Information and Broadcasting but the overall architecture shall be under the Information Technology Act, which governs digital platforms.
• The Rules 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.

Notified the Information Technology Act, these Rules empower the Ministry of Information and Broadcasting to implement the following:

1. Code of Ethics for online news, OTT platforms and digital media: This Code of Ethics prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.
2. Self-Classification of Content: The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age-based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.
3. Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media.
4. A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
   1. Level-I: Self-regulation by the publishers;
   2. Level-II: Self-regulation by the self-regulating bodies of the publishers;
   3. Level-III: Oversight mechanism.
5. Self-regulation by the Publisher: Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.
6. Self-Regulatory Body: There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. Such a body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not be been resolved by the publisher within 15 days.
7. Oversight Mechanism: Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.

Background to the Genesis of these new rules

• Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
• While finalizing these Rules, both the Ministries of Electronics and Information Technology and Ministry of Information and Broadcasting undertook elaborate consultations among themselves in order to have a harmonious, soft-touch oversight mechanism in relation to social media platform as well as digital media and OTT platforms etc.

The need for these new rules

• The Digital India programme has now become a movement which is empowering common Indians with the power of technology. The extensive spread of mobile phones, Internet etc. has also enabled many social media platforms to expand their footprints in India. Common people are also using these platforms in a very significant way.
• Social media intermediaries are no longer limited to playing the role of pure intermediary and often they become publishers.
• Some portals, which publish analysis about social media platforms and which have not been disputed, have reported the following numbers as user base of major social media platforms in India:
  • WhatsApp users: more than 50 Crore
  • YouTube users: almost 45 Crore
  • Facebook users: more than 40 Crore
  • Instagram users: more than 20 Crore
  • Twitter users: 1.75 Crore
• These social platforms have enabled common Indians to show their creativity, ask questions, be informed and freely share their views, including criticism of the Government and its functionaries.
• Proliferation of social media,on one hand empowers the citizens then on the other hand gives rise to some serious concerns and consequences which have grown manifold in recent years.
• These concerns have been raised from time to time in various forums including in the Parliament and its committees, judicial orders and in civil society deliberations in different parts of country. Such concerns are also raised all over the world and it is becoming an international issue.
• Persistent spread of fake news has compelled many media platforms to create fact-check mechanisms. Rampant abuse of social media to share morphed images of women and contents related to revenge porn have often threatened the dignity of women.
• Lack of transparency and absence of robust grievance redressal mechanism highlights the need for the new rules.

Rationale and Justification for New Guidelines

• The following developments are noteworthy in justifying the new rules:
• The Supreme Court in the Prajjawala case, 2018, had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications.
• The Supreme Court had passed an order in 2019, directing the Ministry of Electronics and Information Technology to apprise the timeline in respect of completing the process of notifying the new rules.
• There was a Calling Attention Motion on the misuse of social media and spread of fake news in the Rajya Sabha in 2018.
• The Ad-hoc committee of the Rajya Sabha laid its report in 2020 after studying the alarming issue of pornography on social media and its effect on children and society as a whole and recommended for enabling identification of the first originator of such contents.

Issues with the New Rules

1. Distortion of the Idea of Self-regulation: For digital publishers of news and current affairs as well as video streaming services, a three-tier structure for grievance redressal has been mandated. With an inter-ministerial committee of government officials in effect becoming an appellate authority over the self-regulatory exercise. This would be self-regulation by the media organization and the industry at the government’s pleasure.
2. Compliance Burden: The sheer process of such grievance handling can impede the operations of a relatively smaller digital venture in the news and current affairs space. A measure like this, moreover, jeopardizes the very sustenance of the already financially straitened and functionally beleaguered digital news media.
3. Potential Misuse: Apart from imposing a compliance burden on digital publishers, this also opens the floodgates for all kinds of interventions. Any criticism of the ruling party or government could trigger an orchestrated avalanche of grievances. This is more worrisome in the already vitiated climate of political and religious majoritarianism.
4. Arbitrary Powers: The notification gives the Secretary, Ministry of Information and Broadcasting, ad hoc emergency powers to block any content the government considers problematic even without such token procedure. Also, a negative list of content that shall not be published would be encountered under law as reasonable restrictions to free speech.
5. Problems in Tracking the First Originator: The rules require messaging apps such as WhatsApp and Signal to trace problematic messages to the originator. However, it raises uneasy questions about how such apps will be able to adhere to such orders, as their messages are encrypted end-to-end.

-Source: The Hindu