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IT (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021

The uprising of the “Digital India Programme” together with India being one of the largest internet users felt the urgent need to strengthen the legal framework to make the social media platforms more accountable. On 25th February 2021, the central government presented Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021 that is going to come into effect from 26th May 2021.

The intent behind the 2021 guidelines is to regulate social media platforms and OTT platforms similar to other media such as TVs and Newspapers. The rules have been framed under the Information Technology Act, 2000 and will supersede 2011 guidelines for internet intermediaries.[1]

Background
India with a population of 376.1 million active social media user with the four popular websites Facebook, Whatsapp, Twitter & Youtube, of which whatsapp is the major media that top the list of spreading fake news in India. [2] 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.

The global pandemic gave a strong blow to the growing popularity of the social media, digital news, and OTT (Over-the-top) platform for entertainment, but have started turning against the security of its user as well as the nation. These platforms which were expected to work as the source of entertainment are being misused for spreading hatred and fake news. Freedom of speech is being wrongly used through these platforms, which urged the strong need for proper guidelines for the same.

It has been perpetually seen that central government from time to time have brought amendment under IT laws for keeping a strong watch against the spread of fake news, child pornography, communal hatred, etc. Some of these are as follows:
  • Information Technology Act, 2000, section 66A prohibits the dissemination of false information which is already known to be false to the person who is spreading it through the means of computer or any other communication devices with a malice intention, but later was struck down as unconstitutional by the Supreme Court.
  • Information Technology act, 2008, insertion of a new provision to extend the ambit of cyber offenses within the purview of Information Technology Act. Intermediaries were given the power to remove unlawful data and content on receiving the information regarding the same.
  • Information Technology (Intermediaries guidelines) 2011, Section 79 of the IT act minimized the liabilities of intermediaries from the content and posts of third-party under the following conditions:
    • Intermediaries have limited powers, as they are just a service provider.
    • the intermediary does not initiate, select the receiver of or select/ modify the information contained in a transmission; and
    • the internet intermediary has to observe due diligence and endure by other guidelines prescribed by the Government.

Internet Intermediaries are governed under the IT Act, which defines an intermediary as "any person who on behalf of another person receives, stores, or transmits that electronic record or provides any service with respect to that record".
  • Information Technology Act, 2018, the proposed amendment made in the year 2018 was aimed at curbing fake news that is being spread through social media sites to spread violence. Under Rule 3(9), social media platforms like whatsapp, Facebook, and twitter were forced to make a watch on the contents (that is deemed to be unlawful content) that is being posted on their platforms by the third party. The rules were proposed by the government that seeks to curtail the misuse of social networks and increase accountability.
     
  • Under Section 144 of the Code of Criminal Procedure, Maharashtra government passed an order prohibiting the circulation of fake & distorted information on social media.
     
  • Kashmir’s new ‘Media Policy – 2020’ states that “Any fake news or any news inciting hatred or disturbing communal harmony shall be proceeded against under IPC/Cyber Laws”.

The reason behind introducing the 2021 Amendment
  1. Article 19(1) (a) confer upon its citizen the fundamental right of freedom of speech and expression, but at the same time, this couldn’t be ignored that it is a complex right which is not an absolute one. It has been stated in many cases, that it is subject to reasonable restrictions and carries with it special duties and responsibilities. But many a time this right works as an immunity blanket for the offenders, whenever they are been put behind the bars for spreading the hatred, political instability, controversial speech about sensitive social interest and culture that leads to the cause of conflict, riot, violence, and unrest. It becomes very important to adopt a balancing approach toward freedom of speech for protecting democracy. The aforesaid amendment is paving the path in the same way.
     
  2. The Supreme Court on various occasions has exemplified the need for a quick step toward bringing a binding guideline upon different internet sites. In 2015, an NGO named Prajwala wrote to Supreme Court about the rising child sexual violence videos circulation on the internet, after which the Supreme Court suggested taking a strong step and the requirement of an opaque blocking content mechanism to stop such contents.
     
  3. During the Covid pandemic the rapidly growing popularity of the OTT (Over-the-top) platforms such as Netflix, Amazon Prime, Hotstar, etc. raised its customer base to the peak. 9th November 2020 the President of India exercised his power under article 77(3) of the constitution of India and brought the OTT (Over-the-top) platforms under the ambit of the Ministry of Information and Broadcasting (Ministry of I&B) . This step made it very obvious, that soon OTT (Over-the-top) platforms would not be able to escape the trim of censorship. On 15th October 2020, Supreme Court notifies center for regulating OTT (Over-the-top) platforms by an autonomous body.
     
  4. On 1st February 2021 Supreme Court Bench comprising Chief Justice S A Bobde and Justices A S Bopanna and V Ramasubramanian have noticed to center to take a necessary step toward tackling fake news & hate speech while hearing a PIL filed by Adv. Vineet Jindal.
     
  5. Social Media’s detrimental impact on elections is now turning a threat to the democracy. It has been observed that since the 2014 general election the social media have come forward as a helpful source, but what comes with great power is a great responsibility. The incident for numerous fake information circulation, have tried to manipulate the voter for political gain. [3]

The categorization of different intermediary under IT (intermediary guideline), 2021
Section 2 under the new Rule, 2021 the intermediaries entities are divided into certain categories which are as follows:
  1. Publisher of news and current affairs content: Under Section 2(u) this the category includes the recent happening in the world; primarily of socio-political, economic, or cultural nature that is been available on different digital platforms (it excludes printed newspaper and the e-copies which are available online).
  2. Newspaper: Section 2 (p) these are the old form of folded sheets that contain the news and info regarding the events in it, that are available on a daily, weekly, monthly basis.
  3. Publisher of online curate content: Section 2 (v) means a publisher which makes available to users a computer a resource that enables such users to access online curated content on the inter, but it will not include an intermediary which merely enables users to access third party information, or which merely enables access to online curated content.
  4. Significant social media intermediary: Section 2(y) this means a social media with users above such threshold as may be notified by the Central Government.
  5. Social media intermediary: Section 2(z) this 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:
    1. Enables commercial or business-oriented transactions; or
    2. Provides access to the internet or computer networks; or
    3. Is in the nature of a search engine, on-line encyclopedia, online directory or suggestion tool, e-mail service or online storage service.[4]

Key Features of the New IT Rule, 2021
  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. Needs 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.
       
    • The additional due diligence to be observed by significant social media intermediary: within three months from the publication of the new rule,
      Appointment of Chief Compliance Officer who will be liable for the proceeding related to any relevant third party information data or communication link made available. Also, while the intermediary discharging its duties under the act and rules, fails to observe due diligence.

      Appointment of a nodal person of contact 24x7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules.

      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 month a compliance report will be published, which will include the data of the number of complaints and the action that has been taken accordingly.
  2. 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 the 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 interception, monitoring and the decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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 been satisfied with the decision can move to self-regulating body within 15 days of receiving the decision. Further not been satisfied with the same can, move to oversight Mechanism referred to in Rule 12 for resolution.The three-tier system is been structured under this:
    1. Self-regulation by the applicable entity
    2. Self-regulation by the self-regulating bodies of the applicable entities
    3. Oversight mechanism by the Central Government
       
  8. Code of Ethics:
    Part III of the new guidelines provides with the list of code of ethics which is to be followed by the following person and entities:
    1. Publishers of news and current affairs content; and
    2. intermediaries which primarily enable the transmission of news and current affairs content; and
    3. Publishers of online curated content; and (d) intermediaries which primarily enable the transmission of online curated content.

Under this Part the entities to settle down the grievances has to step up three-tier system under it, which are as follows:
  1. Level I - Self-regulation by the applicable entity;
  2. Level II- Self-regulation by the self-regulating bodies of the applicable entities
  3. Level III - Oversight mechanism by the Central Government.

As mentioned under the appendix, the different Medias have been sub-categorized further on the basis of target audience, these are as follows:
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 content solely reserved for viewing by adults
Measures toward person with disabilities: All applicable intermediaries must take reasonable step 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 the access o the service.

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).

9. 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, for the purpose of enabling communication and coordination with such publishers.

Failure of the aforesaid act will subject the publishers under the provisions of Rule 18 but shall not be required to cease its operations or be prevented from transmitting any content on this ground.

Miscellaneous:
  1. Applicable entity need to fully disclose all the grievances received, the manner in which it is been disposed, action taken, reply sends and order received.
  2. The record of grievances as per the rule specified.
  3. The applicable entity for the period of 60 days need to keep the records of content that has been shared in its platform, for making it available to the bodies formed and central government.

Contravention of rules:
The provisions of the Act, including Section 45 of the Act, shall apply for any violation of these rules.[5]
Plea opposing the new IT Intermediary Guideline, 2021
  1. An end to end-to-end encryption
  2. Lacks the provision for the punishment for the violators of the rules.
  3. Extension of information for the investigation purpose till the period of 6 months,
  4. Fear of losing the Fundamental Right of freedom of Speech and Expression, under the constitution of India.
  5. Question Mark upon the technology for detecting the originator of the offending content.

Conclusion
The Intermediary Guideline, 2021 is a model framed by the Government of India after a thorough analysis of similar guidelines that is been adopted by countries like Singapore, Australia, the European Union and, the United Kingdom. Altogether nature and the hindrances faced by the dynamic culture of India, considering every aspect, degree, and possibilities the proposed system is framed. The improvement of the Intermediary Guidelines is basically an endeavor to foster a quintessential delicate touch, self-administrative system together with a three-level grievance redressal instrument for digital media working in India.

The year 2020 was packed with cases of takedowns with a lot of unheard clarification from the Government. But the new rule, 2021 comes up with a proper framework that will provide the purpose behind the blocking and taking down of the content, sites, accounts, etc.

It will bring a sense of awareness among the social media user regarding the contents what can be posted and what not. The fact cannot be ignored that freedom like what was in the past will be the same now; liabilities too will be increased upon the internet intermediaries. Hopefully, there will be a check upon the rising cyber crimes and hatred. The sense of accountability which was lacking teeth to punish violators will no more be able to cover up under the umbrella of uncensored digital platforms.

End-Notes:
  1. https://en.wikipedia.org/wiki/Information_Technology_Rules,_2021
  2. Social network user penetration in India from 2015 to 2020, with estimates until 025, https://www.statista.com/statistics/240960/share-of-indian-population-using-social-networks/
  3. How did Social Media Impact India's 2019 General Election? https://www.epw.in/engage/article/how-did-social-media-impact-india-2019-general-election
  4. Information Technology (Guidelines for Intermediaries and digital media ethics code) Rules, 2021, https://www.medianama.com/wp-content/uploads/2021/02/Intermediary-Guidelines-2021.pdf
  5. Information Technology (Guidelines for Intermediaries and digital media ethics code) Rules, 2021, https://www.medianama.com/wp-content/uploads/2021/02/Intermediary-Guidelines-2021.pdf


    Award Winning Article Is Written By: Ms.Khushboo Agarwal
    Awarded certificate of Excellence
    Authentication No: JL118419387382-03-0721

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