Understanding the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

Introduction:

India has become the largest internet community in the world with over 680 million internet users and the use of social networking apps in India has grown significantly due to a 21% increase in its users between the years 2020 and 2021. As per data cited by the government, India has 53 crores WhatsApp users, 44.8 crores YouTube users, 41 crores Facebook subscribers, 21 crores Instagram users, while 1.75 crores account holders are on the microblogging platform Twitter.[1] It attracted the closed surveillance of the government to bring some changes to strengthen the legal framework. To bring the revolution in ‘Digital India Mission’ and control the country which has the largest number of active internet users, the Ministry of Electronics and Information Technology (hereinafter “MEITY”) and the Ministry of Information and Broadcasting (hereinafter “MIB”) on February 25, 2021, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(hereinafter “IT Rules”). The rules have been framed under the Information Technology Act, 2000, and will supersede and alter the 2011 guidelines for internet intermediaries.

The rule seeks to bring accountability and uniformity but has drawn widespread criticism for being unconstitutional and undemocratic. Furthermore, numerous cases are pending before the Supreme Court and High Court for withering away digital freedom including the Right to privacy and Freedom of Expression, online.

Origin of the Digital Media Ethics Code

The Corona Pandemic has given a strong blow to the growing popularity of Social Media but this blow also attracted the government and became a turning point for these platforms. Before the new IT Rule India didn’t have a legal framework to regulate online platforms.

In 2005, MIB claimed that they don’t have authority over online content. In 2018, the matter again became a talk of the town when a Public Interest Litigation demanding separate guidelines to regulate the online content, was filed in Delhi High Court by the NGO. Even though this PIL gets rejected by the court stating that Online content doesn’t require any regulatory framework and Section 66A, 67B, and 69 of the IT Act would be applicable; no power for regulation is available.

Another major development in the history of the new rule was the constitution of a 10-member committee in April 2018 by MIB to “frame and suggest a regulatory framework for online media/news portals including digital broadcasting and entertainment/ infotainment sites & news/ media aggregators”.Though in July 2018 the committee disbanded and the task was allotted to a panel overseen by MEITY. There was a Calling Attention Motion on the misuse of social media and the spread of fake news in the Rajya Sabha and the Minister had conveyed to the house on July 26, 2018, the resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law. He had conveyed this after repeated demands from the Members of the Parliament to take corrective measures.[2] Meanwhile, an Ad-hoc committee in Rajya Sabha also studied the issue of Pornography after the case of Prajwala v. Union of India. It recommended the facilitation of the first originator of such content.

In December 2019 to create a distinction between two separate categories, Atul Kumar Tiwari[3] said “OTT is a strange animal but our self-regulation model will only apply to curated content on streaming platforms while user-generated content and social media would be the reserve of the IT Ministry”.

A notice in October 2020 by Supreme Court to the Centre through PIL also has a hand in the new IT Rules,2021. The notice demanded the autonomous regulatory system for online content. After that several OTT platforms adopted self-regulation to guide the content provider to cater to the needs and interests of their customers.

Subsequently, on November 9, 2020, the President of India issued a notification under Article 77(3) of the Constitution, amending the Government of India (Allocation of Business) Rules, 1961 which granted MIB the power to regulate online news platforms and OTT platforms.[4]

After years of debating on this, MIETY notified The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021.

Early Steps taken by the Government

The Government of India has taken many steps before the new rules of 2021, to watch against civil and criminal wrongs like child pornography, the spread of fake news, communal hatred, etc. For instance;

1. Information Technology Act, 2000: Section 66A of the Act prohibits the distribution of false information that is already known as false to a person broadcasting on a computer or other communication device for malicious purposes but was later dismissed as unconstitutional by the Supreme Court.
2. Information Technology Act, 2008: It has introduced a new provision for extending cybercrime claims within the Information Technology Act.
   Intermediaries are empowered to remove illegal data and content from information about the same.
3. Information Technology (Intermediaries guidelines) 2011: Section 79 of the IT Act has reduced the mediators’ liabilities for third party content and posts under the following conditions:
   • Intermediaries[5] have limited powers, as they are just service providers.
   • the intermediary does not initiate, select the receiver of or select/ modify the information contained in transmission; and
   • the internet intermediary has to observe due diligence and endure by other guidelines prescribed by the Government.
4. Information Technology Act, 2018: It is proposed to curb fake news on social media sites especially of violence. 
   Under Rule 3 (9), social media platforms such as WhatsApp, Facebook, and Twitter are obliged to make a watch on content posted on their forums by a third party. These laws were proposed by the government which seeks to curb the misuse of social media and increase accountability.
5. Section 144 of the Code of Criminal Procedure: The Government of Maharashtra has passed an order banning the spread of false and distorted information on social media.
6. Kashmir’s new ‘Media Policy – 2020’: It states that “Any fake news or any news inciting hatred or disturbing communal harmony shall be proceeded against under IPC/Cyber Laws”[6]

Key Features

1. Due Diligence by Intermediaries while discharging their duties: Rule 4(1); To inform its user not to host, display, upload, modify, publish, transmit, store, update or share any information that does not belong to them, and is unlawful. If hosted, stored, or published it needed to be removed within 36 hours of getting informed regarding such content. Together with it, the intermediaries have the right to inform its user once in a year regarding their right to terminate the user access immediately or remove non-compliant information or both.
2. The additional due diligence is to be observed by a significant social media intermediary: within three months from the publication of the new rule.
3. Appointment of Chief Compliance Officer: He will be liable for the proceeding related to any relevant third-party information data or communication link made available. Key managerial personnel or such other senior employees of a significant social media.
4. Appointment of a nodal person of contact: 24×7 co-operation with law enforcement agencies and officials to ensure compliance with their orders or demands made in accordance with legal or regulatory provisions.
5. Appointment of a Resident Grievance Officer: who shall be responsible for the functions referred to in clause (n) of sub-rule (1) of rule 4.
   Every six months a compliance report will be published, which will include the data of the number of complaints and the action that has been taken accordingly.
6. The Messenger media First originator: Rule 5 (2), the messenger social media intermediaries will have a special responsibility of tracking the origin of the information that is been circulated in its platform by the third party, as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under Section 69 of the Act by the Competent Authority as per the Information Technology (Procedure and Safeguards for the interception, monitoring and the decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form.
7. Measure to suppress Sexual offense: Rule 5(4), intermediaries are deployed to convey certain innovative technologies that can instantly distinguish any material that may portray or reproduce offenses like rape, child sexual abuse, or conduct. This should be done without discrimination.
8. Availability of contact address: Rule 5 (5) intermediaries (mobile and computer-based internet application) should have the contact address of the user in order to receive communication addressed to it.
9. Voluntary verification of user account: Rule 5 (7) intermediaries have to for a mechanism where the user of its social media can verify them voluntarily, which will provide the user the verification mark. This gives help in providing greater surveillance.
10. Removal of information Notification: Rule 5(8) intermediary needs to send a notification to its user whole content has been removed from its site, including the reason for the removal, and the opportunity to dispute for the step taken. Further, the Resident Grievance Officer will ensure that every process is been working properly.
11. Establishment of a Grievance portal and Registration of grievance: Rule 9 (1) the ministry will have to establish a portal within 3 months of publishing the new rule, where the grievances could be registered. The portal within 24 hours will generate an acknowledgment of the registered complaint. The applicable entity will address the grievance with 15 days and will also inform the decision on the portal. The complainant on not being satisfied with the decision can move to a self-regulating body within 15 days of receiving the decision. Further not being satisfied with the same can, move to oversight Mechanism referred to in Rule 12 for resolution. The three-tier system is being structured under this:
    • Self-regulation by the applicable entity.
    • Self-regulation by the self-regulating bodies of the applicable entities.
    • Oversight mechanism by the Central Government.
12. Code of Ethics: Part III provides the list of codes of ethics:
    • Publishers of news and current affairs content; and
    • intermediaries which primarily enable the transmission of news and current affairs content; and
    • Publishers of online curated content; and
    • intermediaries which primarily enable the transmission of online curated content.

Under this Part the entities to settle down the grievances has to step up a three-tier system under it, which are as follows:

• Level I – Self-regulation by the applicable entity;
• Level II- Self-regulation by the self-regulating bodies of the applicable entities
• Level III – Oversight mechanism by the Central Government.

While a victim who has a complaint against a publisher has been granted the right to appeal, there is no right to appeal to the publishers against any governing body decision, interdepartmental committee, or any action by the Secretary of the Department, leaving the publishers without a legal remedy.

13. Online Curated Content: The categorization of content as per the age of the viewer,

Rating	Type of Content
‘U’	Content suitable for children and people of all ages
‘U/A 7+’	Content that can only be viewed by a person below the age of 7 years with parental guidance
‘U/A 13+’	Content for which requires parental guidance for viewers below the age of 13 years
‘U/A 16+’	Content for persons below 16 years requiring parental guidance, and
‘A’	Content for the content solely reserved for viewing by adults

14. Measures toward persons with disabilities: All applicable intermediaries must take reasonable steps to discover the ways to provide accessibility of online curated content with the persons of special needs so that they could also be provided with access to the service.
15. Advertisement of the applicable entities: The entities should adhere to the guidelines provided under these acts and codes Consumer Protection Act, 2019, the Advertising Codes laid down under the Cable Television Networks (Regulation), Act, 1995 and arid – Codes of the Advertising Standard Council of India (ASCI).
16. Notification by significant publishers of news and current affairs content: It’s mandatory for such publishers to notify the Broadcast Seva within sixty days that it is operating in the territory of India, by furnishing the information that may be required on the Broadcast Seva by the Ministry, to enable communication and coordination with such publishers.

Failure to do any of the foregoing actions is likely to place the publishers under the provisions of Rule 18 but it will not be necessary to suspend or restrict the transfer of any content in this forum.

Contravention of Rules

The provisions of the Act, including Section 45 of the Act, shall apply for any violation of these rules.

• Plea opposing the new IT Intermediary Guideline, 2021.
• An end to end-to-end encryption.
• Lacks the provision for the punishment for the violators of the rules.
• Extension of information for the investigation purpose till the period of 6 months.
• Fear of losing the Fundamental Right of freedom of Speech and Expression, under the constitution of India.
• Question Mark upon the technology for detecting the originator of the offending content.

Considering the enormous nature of the 2021 Laws, it is not surprising that they have come under challenge before the various High Courts.

Critical Analysis with other Countries

India is not alone in seeking to enforce government regulations on social media and OTT platforms. Other countries such as Singapore, Australia, the US, the UK, and Europe have similar laws aimed at ensuring accountability and consistency. For example, the Infocomm Media Development Authority (IMDA) in Singapore regulates content for mediators. It also authorizes compulsory licensing, parental locking, age verification, and content classification for a complete list of illegal content. In addition, these rules also require that mediators weigh the opinions expressed in the media.

Australia Communications and Media Authority has passed a new bill known as the ‘Sharing of Abhorrent Violent Material Bill’ which aims to hold media communicators able to respond to any type of news that shows murder, terrorism, rape, kidnapping, etc. inside or outside Australia. Platforms such as YouTube and Facebook are at risk of severe penalties and employee incarceration if these rules are not complied with.

A third example to consider is the Online Safety Bill introduced by the UK government which requires online content service providers to take the necessary steps to reduce illegal content, conduct child risk assessments and have appropriate mechanisms in place to address complaints.

Conclusion

The year 2020 is full of cases of retrenchment with many clarifications that have never been heard by the Government. But with the new law, 2021 comes with an appropriate framework that will provide the purpose of blocking and capturing content, sites, accounts, etc. The IT Rule, 2021 is based on a model of similar guidelines in other countries such as the UK, Australia, and various EU countries. Due to the changing culture of India, they have to deal with various barriers and limitations at all levels, features, and opportunities for the proposed system. The development of consultant guidelines is primarily an effort to promote a more sensitive touch, an independent system, and a grievance redressal tool for three levels of digital media operating in India. In order to meet the objectives, the new rules, which need to be implemented with reasonable integrity, arrangements must be continuously separated by clear and continuously updated terms to keep pace with rapidly changing content on digital platforms. There is a need to balance between fundamental rights and ensure that appropriate limits have been an ongoing effort since the adoption of the Constitution. This new act will bring awareness among the user and content about what can be posted and what cannot. The sense of accountability that lacks the teeth of punishment for offenders can no longer be hidden under the umbrella of untested digital platforms.

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References:

[1] Press Release, Press Information Bureau, Feb. 25. 2021, https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1700749 (last visited Oct. 19, 2021).

[2] Supra note 1.

[3] Additional Secretory, Ministry of Information and Broadcasting reportedly

[4] SFLC.IN, https://www.sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021 (last visited Oct. 21,2021).

[5] any person who on behalf of another person receives, stores, or transmits that electronic record or provides any service with respect to that record.

[6] Vasudev Devadasan, Indian Constitutional Law and Philosophy, WORD PRESS (Oct. 21,2021, 17:05 PM), https://indconlawphil.wordpress.com/2020/06/17/fake-news-and-the-constitution/.