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On 25th February, 2021, the Centre notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘2021 Rules’) under S.87 of the Information Technology Act, 2000.
The primary objective behind framing the said rules:
To strengthen grievance redressal mechanisms and,
To have a ‘soft-touch’ oversight mechanism in relation to social media, digital media and OTT platforms.
India’s growing online presence has given a platform to its citizens from all income backgrounds to share their opinions, seek information and become a part of this burgeoning virtual world that leaves no voice unheard. However, certain ‘virtual evils’ by the name of fake news, morphed images, obscene content, etc. have fomented an environment of disharmony and violence, which prompted corrective measures from the Government.
Countdown to the 2021 Rules…
3… Therefore the Ministry of Electronics and Information Technology (MEITY) framed a draft Information Technology (Intermediary Guidelines) Rules, 2018, thereby proposing an amendment to the previously existing Information Technology (Intermediary Guidelines) Rules, 2011 (‘2011 Rules’).
2… The said draft rules were then released in the public domain in December 2018, inviting comments and/or counter-comments from relevant stakeholders of the public.
1… Further, there has been a significant spike in digital media consumption, with people opting for OTT platforms (added boost due to Covid-19). Lack of content regulation on OTT platforms and its resultant complaints pushed the need for an oversight mechanism.
0… After relevant analysis of the public comments so received and the issues surrounding OTT platforms, the central government notified the 2021 Rules on February 25th, 2021. These now issued rules are an amendment to the 2011 Rules with their roots set in the 2018 draft IT Rules.
Union Minister of MEITY Mr. Ravi Shankar Prasad and Union Minister of the Ministry of Information and Broadcasting Mr. Prakash Javadekar addressing a Press Conference on Feb 25th, 2021
The Building Blocks…
What’s in the 2021 Rules?
1. REGUATION OF SOCIAL MEDIA ITERMEDIARIES
Social Media Intermediaries
o Two categories of Intermediaries
Intermediaries with over 50 lakh (5 million) users now fall under Significant Social Media Intermediaries (SSMI) while the rest come under Social Media Intermediaries (SMI).
The purpose of this distinction is to determine which regulations are applicable to different social media platforms.
o Due Diligence to be followed
All intermediaries are required to comply with the 2021 Rules. For example, all intermediaries are required to publish the rules and regulations, privacy policy and user agreement on their website and/or application, etc.
Failure to comply with the same shall prevent the ‘safe harbour’ provisions contained in S.79 of the Information Technology Act, 2000 from protecting them.
The given due diligence provisions are an addition to the ones mentioned in the 2011 Rules, an attempt to tackle the circulation of fake news and obscene material.
o Mandatory Grievance Redressal Mechanism
All intermediaries are required to appoint a Grievance Officer to deal with complaints, with his/her name and contact details shared.
The officer is required to acknowledge the complaint(s) within 24 hours and resolve the same within 15 days of receiving such complaint(s).
This amends the said provision as mentioned in the 2011 Rules by reducing the time period of receipt and resolve of complaints from one month to 24 hours and 15 days respectively.
o Ensuring online safety and dignity of users
All intermediaries shall remove or disable access, within 24 hours of receipt of a complaint, of contents that expose the private areas of individuals, show such individuals in partial or complete nudity, morphed images, etc.
The said complaint can be filed by an individual or a person on his/her behalf.
This provision has been incorporated to tackle the problem of publication of nudity/sexual content without consent.
o Takedown of Unlawful Information
All intermediaries, upon receiving actual knowledge by way of a court order or by being notified by a government agency shall take down any information that is prohibited by law, in the interest of sovereignty and integrity of India, friendly relations with foreign states, public order, contempt of court, decency and morality, etc.
Such information shall be removed within 36 hours from receipt of actual knowledge by the intermediary.
This provision has been drafted in response to the growing objectionable and politically-coloured content that has been doing rounds on several social media platforms.
o Mandatory Data Retention
All intermediaries are required to preserve information for a period of 180 days for investigative purposes, even after the user has deleted his/her account.
o Additional due diligence provisions for Significant Social Media Intermediaries (SSMI)
Appointment of three officers who must reside in India: (i) Chief Compliance Officer, who is responsible for ensuring compliance with the Information Technology Act, 2000. (ii) Nodal Contact Person, for 24*7 coordination with law enforcement agencies. (iii) Resident Grievance Officer, with responsibilities like those of the Grievance Officer for SMIs.
Compliance Reports: SSMIs are required to publish compliance reports containing details of the complaints that were received and the action taken on the same. It must also contain details of the content removed by the intermediary proactively.
Tracing the originator of the message: (i) SSMIs primarily in the nature of messaging, are needed to enable tracing of the ‘originator of the information.’ (ii) This provision does not require the intermediaries to reveal any other information related to the originator of the information or any information related to other users. (iii) This provision was incorporated for the purpose of curbing the nuisance of fake news and obscene content.
Automated Filtering: (i) SSMIs are required to develop and deploy technology-based measures to proactively identify any information that depicts an act or simulation depicting rape, child sexual abuse or misconduct. (ii) The intermediary is required to give a notice to any user trying to access such information.
Voluntary Verification of Users: Users must be allowed to voluntary verify their accounts using appropriate mechanisms, which includes using the Indian mobile number of the user. Also, the said user’s account must display a verification mark.
The infamous Instagram Verification mark
2. REGULATION OF DIGITAL NEWS MEDIA AND OTT PLATFORMS
o Code of Ethics:
OTT Platforms i. Self-classification of content: OTT platforms (publishers of online curated content), are required to self-classify their content into five categories- U, U/A 7+, U/A 13+, U/A 16+ and A. ii. Parental Locks: OTT platforms must implement parental locks for content classified as U/A 13+ and/or higher. Also, relevant age verification mechanisms are required for content classified as A. ii. Display Rating: OTT platforms shall display, for every content so published, their respective classification rating along with a content descriptor that informs and advises the user about the nature of the content.
o Digital News Media Platforms:
Digital news media publishers are required to observe the norms of the Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act, 1955.
This provision has been incorporated in order to ensure a level playing field between offline (Print and TV) and digital media.
Digital News Media and OTT Platforms
o Grievance Redressal Mechanism:
The 2021 Rules specify a three-tier grievance mechanism to ensure that digital news media and OTT platforms adhere to the above-mentioned Code of Ethics. i. Tier-1: Self-regulation by Publisher Both digital news media and online curated content publishers are required to appoint a Grievance Officer residing in India. The officer is required to take a decision on every grievance within 15 days. Incase the complainant fails to receive a satisfactory response from the same, he/she may appeal to Tier-2. ii. Tier-2: Self-Regulatory Body Digital news media and online curated content publishers are required to set up an in independent self-regulating body, registered with the MIB. This body will oversee adherence of the said publishers to the Code of Ethics as well as address grievances coming from tier-1. It is also empowered to issue guidance and/or advisories to the publishers, issue warnings and even censor content. iii. Tier-3: Oversight Mechanism The oversight mechanism is an inter-departmental committee consisting of members from the MIB, Ministry of Women and Child Development, Ministry of Law and Justice, MEITY, etc. chaired by joint secretary of the MIB. This committee is responsible for hearing complaints in relations to decisions taken at tier-1 and tier-2 while empowered with the authority to delete or modify content to prevent any instigation that leads to disruption of public order.
Within days of their release, the 2021 Rules find themselves in the midst of a fracas with those claiming them to being an attack on the freedom of speech and expression, an invasion to online privacy and an impetus to ‘surveillance culture;’ whereas those in favour, that it is a complete answer to weed out elements in the society who are anti-national and also those circulating fake news on social media with a view to insight disharmony and to destabilize the government.
It is therefore left to you readers whether the proposed amendments to the 2011 Rules is a boon or a bane to online India.
