Implications Of Information Technology Intermediary Guidelines, 2021
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)
Following are the implications of these new guidelinesOn 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 were 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 instilling 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.
General Guidelines for All IntermediariesThese general guidelines apply to all intermediaries, including major social
media intermediaries like Twitter, Face book, 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,
agreements for access to its website and/or the 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:
Belongs to another person Is defamatory, obscene, pornographic, pedophilic,
invasive of one's privacy, libelous, or inconsistent to the laws of the land Is
dangerous for minors Leads to the infringement of any intellectual property
right Deceives or misleads with regards to the origin of the message Impersonate
another person Hampers the integrity, defense, security or sovereignty of the
country, friendly relations with foreign states, public order or results in the
incitement of any cognizable offence Includes any software virus or program
designed to harm or impede the activity of any computer resource. Or is patently
false and untrue, regardless of its form is published or to mislead or harass a
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
frequent revisions, which should be conveyed to users promptly.
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 court order or
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. 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.
Additional Compliance Measures for Significant Social Media IntermediariesDue 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.
Except for 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:
Appointing of a Chief Compliance Officer, assuming the responsibility to ensure
compliance and oversight of the functions of significant intermediaries.
Appointing of a nodal person of contact, who would act as a link between law
enforcement agencies appointing of a Resident Grievance Officer, whose
responsibilities would lay parallel to that of the Officer appointed under Rule
4(1) (n). Publishing the compliance report on a periodical basis of six months,
containing the details and contents of complaints handled and information
removed or interrupted by intermediaries in pursuit of their monitoring
A suitable procedure shall be established by the significant intermediary under
Rule 5 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
Special Measures for Sexual Offences: Other tools, such as Rule 5, has been made
available to significant intermediaries 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.
Digital/Online Media Procedures and Safeguards
As specified by Rule 2(1) (k), digital media is any digitized 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 curate content.
It contains the following items:
Publishers of news and current events allowing the transmission of news and
current events by intermediaries publishers of curated web material, and
allowing the transmission of online curated content through intermediaries 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
Grievance MechanismAs 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
Level I: Self-regulation by the applicable entity
Level II: Self-regulation by the self-regulating bodies of the applicable
Level III: Oversight mechanism by the Central Government
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. 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 organize 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.
This committee aims to get 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 are given under
Rule 11(5), including the right to initiate the process under Rule 14, which
will be applicable. This helps the Committee to take action to determine the
source of the 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 an 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 practices. It categorizes material according to its intended
audience, assigning a:
'U'� rating for suitable content for children and people of all ages 'U/A 7+'
for content that can only be viewed by a person below the age of 7 years with
parental guidance 'U/A 13+' which needs parental guidance for viewers below the
age of 13 years 'U/A 16+' for persons below 16 years who required parental
guidance, and 'A' for the content solely permitted for viewing by adults.
Themes and messages, crime, sex, nudity, drug and substance abuse, and other
factors can be used to further categorize the content. These classification
ratings must be presented visibly and unambiguously 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 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
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