The Ministry of Electronics and Information Technology (MEITY) and the Ministry of Information and Broadcasting (MIB) on 25.02.2021, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Following are the implications of these new guidelines.
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On 25th February, 2021, The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021 (hereinafter referred to as "the Rules") were enacted by the Central Government under the powers conferred on it by Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, in close collaboration with the Ministry of Electronics and Information Technology and the Ministry of Information Technology. These Rules were developed in response to abuse of the government on social media platforms, while still recognizing the right to criticize and disagree as a required component of democracy. It aims to provide a comprehensive complaint process for users of social media and OTT platforms to resolve their complaints, which was previously unavailable.
The new legislation has been described as progressive, liberal, and current because it puts a strong focus on protecting women from the dissemination of sexual offences on social media. It stresses the importance of social media intermediaries and online service providers adhering to the Indian Constitution and domestic rules, whether for entertainment or informational purposes. It is the first of its kind to put social media use under the legislative structure of the Information Technology Act, and it expands on its approach to instil a sense of responsibility toward misuse and harassment by social media users.
These regulations were introduced in light of the government's recent crackdown on OTT platforms, which has been campaigning fervently for better and stricter regulations. Contrary to common opinion, the Government states that the Guidelines were drafted with the value of free expression, journalistic, and artistic freedoms in mind. Regardless of the political ramifications, the implementation of these Rules brings India up to date with international digital media regulatory regimes, providing consumers with a more robust and holistic standard of security.
These general guidelines apply to all intermediaries, including major social media intermediaries like Twitter, Facebook, Instagram etc. Those who facilitate commercial or business transactions, provide access to networks, search engines, and other types of intermediaries as described are exempt from the category of social media intermediaries under Rule 2(1)(z).
Due Diligence: Rule 4 outlines an intermediary's due diligence responsibilities, which include publishing its rules and regulations, privacy policy, and user agreements for access to its website and/or application so that its users may access them. The user's duty to not "host, view, upload, alter, publish, distribute, store, update, or exchange" any kind of information must be crystallized in the information so released in a way that it:
Notifications provided to the User: Apart from simply publishing such obligations, the intermediary must also warn the user that failure to comply with the above may result in their access or use rights being terminated. These laws and regulations, privacy policy, or user agreements may also be subject to frequent revisions, which should be conveyed to users in a timely manner.
Enforcement Action to be Undertaken: Intermediaries are required to halt the hosting, storage, or publishing of any information that is prohibited by law in the interest of national sovereignty, dignity, protection, and so on, as specified in Rule 4(1)(d), if they become aware of it through a court order or a government notification. A strict time limit of 36 hours has been given to the intermediary to delete or restrict access to such information. Following the removal of such material, the data must be kept for 180 days for investigation purposes. In order to respond to complaints from users or victims, intermediaries must appoint a Grievance Officer, whose contact information must be made public and who will accept and resolve complaints within one month.
Due Diligence: The Rules have a peculiar feature in that they differentiate between social media intermediaries and major social media intermediaries. The demarcation is based on user size, and once determined via government notification, it will serve as a dividing line between the two. The explanation for this is stated in Rule 5, which imposes additional enforcement criteria for major social media intermediaries due to the large number of users and information they manage. With the exception of the user size requirements, the government may enforce the provisions of Rule 5 on any other intermediary through a notification. Within three months of the publication of these laws, those intermediaries should perform the following due diligence:
A suitable procedure shall be established by the significant intermediary under Rule 5 in order to facilitate the processing of complaints relating to the violations listed in this Rule (6). The agent must inform the plaintiff of the nature of the action taken in such a process.
First Originator: Rule 5(2) imposes a new requirement on major social media intermediaries participating in messaging systems to assist law enforcement authorities in identifying and monitoring the first source of any controversial or questionable information. This may only be carried out if a competent court or the Competent Authority issues an order under Section 69 of the Act. This power can only be used to stop any crime that undermines the state's dignity or protection, such as rape, child sexual abuse, or other serious crimes. However, if less invasive methods are available, they should only be used as a last resort.
Special Measures for Sexual Offences: Other tools, such as Rule 5, have been made available to significant intermediaries in order to discourage the commission or instigation of rape or child sexual exploitation (4). These intermediaries must use technology-based measures to quickly detect any content that depicts or simulates such crimes. This must be achieved without prejudice or discrimination, and with the utmost respect for privacy and free expression.
Voluntary Verification of Users: Under Rule 5, users of significant social media intermediaries must be able to voluntarily verify themselves (7). Verification may be done based on their phone number or account, and the user will receive a visible verification label. This method of controlling users was introduced to discourage users from exploiting these services and to provide a higher degree of surveillance over their activities.
Notification to Originators on Removal of Information: When a significant intermediary removes or restricts access to any information or data, they must make the originator aware of the decision, including the reasons for it, after giving them a fair opportunity to do so. Furthermore, Rule 5(8) requires that the Resident Grievance Officer supervise this procedure.
As specified by Rule 2(1)(k), digital media is any digitised content that can be transmitted over the internet or other networks, and includes the same content that is stored or transmitted by intermediaries, such as news publishers or online curated content. It contains the following items:
which are based in India and conduct business by making content available in India and targeting Indian users However, the following laws, which apply to certain bodies, will not take effect until three months have passed after they were written.
As per Rule 9, an Online Grievance Platform, created by the Ministry within three months of the rules' implementation, will serve as the central repository for accepting and resolving grievances related to the Code of Ethics (1). As a consequence, the Rules create a three-tiered grievance procedure, which includes:
Level I: The relevant agency will be notified of the grievance and encouraged to resolve it on its own, whereas the plaintiff and the Grievance Portal will be kept informed. In order to exercise this authority, the relevant body must nominate a Grievance Redressal Officer who will be bound by the Code of Ethics. According to the Schedule, the relevant agency must identify the online curated content it transmits and issue it with an acceptable certificate. The certification can be based on the content, its effect, the target audience, and other factors, and it must be displayed in a prominent location so that consumers are aware of it before accessing the content.
Level II: If the first-level process is not completed within 15 days, the matter will be escalated by filing a complaint with a Self-regulating Body, of which the agency is a member. Such bodies should be formed separately by such institutions or their associations and led by a retired Supreme Court or High Court judge. This body would provide guidelines on the Code of Ethics and make decisions on grievances that had been escalated from the first level. A self-regulating body may issue alerts, censorship, demand an apology, reclassify ratings of online selected content, make necessary changes to the content descriptor, or refer the matter to the Oversight Mechanism under Rule 12 to implement such decisions.
Level III: If the self-regulatory bodies fail to provide any relief to the claimant, Rule 12 allows them to appeal to the Central Government's Oversight Mechanism for a resolution. Under Rule 13, the Ministry will organise such a measure by forming an Inter-Departmental Committee to resolve grievances. Representatives from the Ministry of Information and Broadcasting, the Ministry of Women and Child Development, the Ministry of Law and Justice, as well as other related Ministries, will make up this committee. The aim of this committee is to get a comprehensive and all-encompassing view of the Rules violations. Violations can occur as a result of Level I and II complaints filed on their own or those referred by the Ministry. Similar powers given under Rule 11(5), including the right to initiate the process under Rule 14, will be applicable. This helps the Committee to take action to determine the source of infringing material and to block it.
Code of Ethics
The Code of Ethics, which is mentioned in the Appendix, is the underlying thread that connects all of the Rules. This includes news and current affairs, curated web material, and advertising.
Online Curated Content
The Code, which offers a detailed and in-depth look at controlling online curated content, makes an exception for India's multi-racial and multi-religious domain, where due caution and reverence should be paid in portraying their actions, values, or practises. It categorises material according to its intended audience, assigning a:
Themes and messages, crime, sex, nudity, drug and substance abuse, and other factors can be used to further categorise the content. These classification ratings must be presented in a visible and unambiguous manner and in a prominent location so that the consumer is conscious and updated. For content rated U/A 13+ or higher, access control mechanisms such as parental locks should be made, and in the same vein, a reliable verification mechanism of the viewer's age should be developed for content rated 'A'.
The idea of tracking the first originator, as introduced by Rule 5(2), has been regarded as controversial and troubling. It helps the compliance mechanism to reach the originator of any information through significant social media intermediaries that offer messaging services. This is an effort to prevent the dissemination of fake news and illegal activity via messaging applications. Cyber experts, on the other hand, are concerned that this would potentially lead to the overriding of end-to-end encryption, allowing for the establishment of a surveillance state. This could result in a significant data breach, which most messaging apps proudly display as a badge of honour. The authority to trace the originator may also be used to deter or investigate an offence that undermines the state's sovereignty, dignity, or protection. What the Rules fail to consider is the enormous potential for exploitation of such a large and discretionary power.
Furthermore, members of the media community stress the Rule's enforcement in order to eliminate freedom of speech. While the executive is reforming the grievance redress system, the Oversight Body has been given authority to rule on the suitability of content published by the media, an extraordinary move that could be seen as violating the Constitution. The authority to adjudicate on matters relating to free speech and journalistic freedoms has been issued to an inter-ministerial committee of bureaucrats, which may or may not be conducive to the same.
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