On February 25, 2021, the Ministry of Electronic & Information Technology (‘MeitY’) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 20211 (‘New Rules’) thereby replacing the Information Technology (Intermediary Guidelines) Rules 2011 (‘Old Rules’)2. As the name suggests, in addition to laying down the intermediary guidelines, the New Rules also outline the framework for regulating OTT (“over-the-top” i.e., a content provider going over the top of existing internet services), messaging platforms, social media platforms and other digital media platforms.
I. Background:
As per the statement issued by MeitY in the Press Information Bureau3, the rationale behind introducing the New Rules is:
- Social media platforms must be accountable to the Constitution and laws of India: There has been extensive growth in the use of social media platforms in India. Some major social media platforms in India have reported the following numbers as their user base in India:
● WhatsApp users: 53 Crore
● YouTube users: 44.8 Crore
● Facebook users: 41 Crore
● Instagram users: 21 Crore
●Twitter users: 1.75 Crore
While the government acknowledges the role played by these social media platforms in enabling Indians to freely exercise their right to freedom of expression, however, it is necessary that a regulatory system is put in place for holding such platforms accountable to the Constitution and laws of India.
- Growing concerns around rampant abuse of the social media platforms: With the advent of digitisation, there has been a considerable rise in the rampant abuse of social media by miscreants and anti-national elements of the society, whereby such platforms have of late become a media for spreading fake news, publishing defamatory remarks and spreading obscene and discriminatory content.
These concerns have time and again prompted the law enforcement agencies to formulate a concrete action plan for combating the abuse of social media.
- Lack of transparency and absence of robust grievance redressal mechanism: The sheer absence of a uniform and robust grievance redressal mechanism coupled with the growing need for transparency, also motivated the government to take positive steps towards establishing a definitive regulatory regime in the interest of users. The New Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights.
- Evolution of Social Media and Other Intermediaries: Owing to the growth and diversification of their functionalities, social media platforms are no longer limited to playing the role of a mere intermediary but rather they often act as active publishers of content as well. With a view to offer a comprehensive governance framework, the New Rules have introduced a fine blend of liberal regulatory touch coupled with a gentle self-regulatory framework which aims to work on the existing laws and statues applicable to content, both online and offline. For instance, the publishers of news and current affairs are expected to follow the journalistic conduct of Press Council of India and the Programme Code under the Cable Television Network Act, which are already applicable to print and TV.
II. The Information Technology (Guidelines for Intermediary and Digital Media Ethics Code) Rules, 2021: Framework
The New Rules consist of three parts:
Part I: Definitions
Part II: Due Diligence by Intermediaries and Grievance Redressal Mechanism. This will be administered by MeitY.
Part III: Code of Ethics and Procedure and Safeguards in Relation to Digital Media. This will be administered by Ministry of Information and Broadcasting (‘MIB’).
III. Definitions:
As a progressive step, the New Rules have introduced certain key terms that were earlier not covered under the Old Rules. Some of these relevant terms are mentioned below:
a) Digital Media: means the digitized content that can be transmitted over the internet or computer networks and for the purposes of these rules includes content received, stored or transmitted by:
- an intermediary; or
- a publisher of news and current affairs content or online curated content
b) Grievance: includes any complaint, whether regarding any content, any duties of an intermediary or publisher under the Act, or other matters pertaining to the computer resources of an intermediary or publisher, as the case may be, which is made to an intermediary under Part II of these rules, or made under Part III of these rules.
c) Intermediary: shall have the same meaning as assigned to it in clause (w) of sub-section (1) of section to the Act;
Explanation: For the purpose of these rules an intermediary includes websites, apps and portals of social media networks, media sharing website, blogs, online discussion forums and other such functionally similar intermediaries.
d) News and current affairs content: It includes newly received or noteworthy information, including analysis, especially about recent events primarily of socio-political, economic or cultural nature, available over the internet or computer networks
Explanation: For the purposes of these rules, any digital media shall mean news and current affairs content where the context, substance, purpose, import add meaning of such media is in the nature of news and current affairs content.
e) Online curated content: means any curated catalogue of audio-visual information, other than news and current affairs content, made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, television programmes, serials, podcasts and other such information.
f) Publisher of news and current affairs content: means an online paper, news portal, news aggregator, news agency and such other publishers of news and current affairs content by whatever name called, but does not include newspapers, replica e-paper of the newspaper and any user generated content which is not transmitted in the course of systematic business activity.
g) Publisher of online curated content: means a publisher which makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks, but does not include an intermediary which merely enables access to online curated content, or which merely enables users to access third party information.
h) Social Media Intermediary: means an intermediary referred to in clause (m) which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services but shall not include an intermediary which primarily:
- enables commercial or business oriented transactions; or
- provides access to internet or computer networks;
- is in the nature of a search-engine, on-line encyclopaedia, online directory or suggestion tool, e-mail service or online storage service.
i) Significant social media intermediary: means a social media with users above such threshold as maybe notified by the central government.
IV. Due Diligence by Intermediaries:
1. Intermediaries includes two categories of social media intermediaries:
– social media intermediaries
– significant social media intermediaries (more than 50 lakhs users)
2. As compared to the Old Rules, the due diligence guidelines set out for Intermediaries under the New Rules are far more elaborate and it is mandated that these guidelines shall be followed by all intermediaries. Broadly the guidelines set out are as follows:
a. The intermediary is required to prominently publish on its website or application or both as the case maybe, the rules and regulations, privacy policy and user agreement for access or usage of its computer resources by any person. The intermediary shall inform any user not to host, display, upload, modify publish, transmit, store, update or share any information that interalia,
i. belong to another person and to which the user does not have any right.
ii. is defamatory, obscene, pornographic, invasive of another’s privacy including for daily privacy, insulting or harassing on the basis of gender etc., or contrary to the laws of India;
iii. harmful to minors
iv. infringes any patent, trademark, copyright, other proprietary rights
v. violates any law for the time being in force
vi. threatens the unity, integrity, defence, security or sovereignty of India, friendly relation with foreign states, or public order or cause incitement to the commission of any cognizable offence or prevents investigation of any offense or is insulting any foreign states.
b. The intermediary shall inform its’ user(s), at least once every year, that in the event of non – compliance of rules & regulations, privacy policy or user agreement, it has the right to terminate the access of usage rights of the users to the computer resource immediately or remove non- compliant information or both, as the case may be.
c. The intermediary shall provide on its website or application or both, the name of Grievance Officer and contact details as well as grievance redressal mechanism and such Grievance Officer will be responsible for resolving it within one month from date of receipt.
3. Additional due diligence only for significant social media intermediaries:
i. Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance of the act and rules.
ii. Appoint a nodal contact person for 24/7 coordination with law enforcement agencies.
iii. Appoint a resident grievance officer who shall perform the functions mentioned under the grievance redressal mechanism.
iv. Publish a monthly compliance report mentioning the details of complainant received and action taken on the complaints.
v. Such intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information.
vi. Deploy technology-based measures including developing AI tools for identifying sexually explicit content and displaying a notice upon such identification. However, such measures shall have due regard to the freedom of speech and expression and privacy of the users of the computer resource and hence, the AI tools shall be periodically reviewed for ensuring their accuracy and fairness.
V. Digital media ethics code relating to digital media and OTT platform
1. Applicable entities under this rule are:
i. publishers of news and current affairs content; and
ii. intermediaries which primarily enable the transmission of news and current affairs content; and
iii. publishers of online curated content; and
iv. intermediaries which primarily enable the transmission of online curated content.
2. Applicable entity shall mandatorily observe and adhere to the Code of Ethics provided under the Rules and any non-compliance shall attract consequences as provided under the applicable statute.
3. Three-tier grievance redressal mechanism has been established under the rules with different levels of self-regulation:
Level I – Self-Regulation Mechanism: The applicable entities shall appoint a grievance redresser officer based in India.
Level II – Self-regulating mechanism by the self-regulating bodies of the publishers: There maybe one or more self-regulatory bodies which shall be headed by a retired judge of the Supreme Court and/or the High Court and have other independent eminent members (not more than 6 members). It should be registered with the MIB.
Level III – Oversight mechanism: The MIB shall formulate an oversight mechanism. It shall publish a charter of self- regulating bodies, including codes of practices. It shall establish an Inter- departmental committee for hearing grievances.
4. Self-classification of content:
i. platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanism for content classified as “A”
ii. Publishers of news on the digital media would be required to observe norms of journalistic conduct of the Press Council of India and the program code under the Cable Television Network Regulation Act.
VI. Conclusion:
1. The New Rules reminded me of the famous dialogue “with great power comes great responsibility”. The New Rules, along with providing intermediaries and their users, the freedom to operate digital media, also, introduce a balance by providing for a transparent and speedy grievance redressal mechanism against any breach or violation of any Indian law, both to the intermediaries and its users.
2. The New Rules also supplement the already existing Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, in addressing the issue of decryption of “end-to-end encrypted” messages for identifying the ‘first originator’ in India. One landmark judgment wherein the Supreme Court of India discussed the issue of decryption is Facebook Inc. Vs. Union of India (https://indiankanoon.org/doc/90111783/) wherein it rightly opined : “We must also highlight that de-encryption, if available easily, could defeat the fundamental right of privacy and de- encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded. However, at the same time, the sovereignty of the State and the dignity and reputation of an individual are required to be protected. For purposes of detection, prevention and investigation of certain criminal activities it may be necessary to obtain such information. De-encryption and revelation of the identity of the originator may also be necessary in certain other cases, some of which have been highlighted hereinabove.”
3. Yet another issue surrounding the New Rules relates to the obligation imposed on the intermediaries for deployment of AI enabled tools to identify sexually implicit information, whereby the concern is that that such vigilance may be in breach of Personal Data Privacy. In my view, the deployment of such tools does not infringe privacy since the New Rules itself provide a balancing provision requiring the usage of such tools to respect the contours of privacy of the users of the computer resource. Also, it is pertinent to note that section 36 of the yet to be notified Personal Data Protection Bill, 2019 empowers the government with the right to process data in the interests of prevention, detection, investigation and prosecution of any offence or any other contravention of any law for the time being in force. In fact, the Hon’ble Supreme Court in suo moto writ petition (Prajjawala case) vide order dated November 11, 2018 had observed that the government may frame necessary guidelines to eliminate child pornography, rape and gang rape imageries containing videos and sites in content hosting platforms and other applications.
4. Lastly, Part III of the New Rules has been challenged before various Indian courts for being ultra vires to the parent legislation viz. the IT Act 2000, and for also allegedly violating Articles 14, 19(1)(a), 19(1)(g) and 21 of the Constitution of India. Since these cases are sub judice before various courts, we will wait to see the outcome of the same.
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1 https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-
intermediary
2 https://www.meity.gov.in/writereaddata/files/GSR314E_10511%281%29_0.pdf
3 https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749
