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Critical Analysis Of Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules 2021

The Government of India formulated the new Information Technology Rules 2021 suppressing the Information Technology Rules, 2011. The main aim of IT Rules 2021 is to provide an extensive grievance mechanism for the users of social media and over-the-top platforms. Several factors have compelled the authorities to come up with such strict rules regulating the digital world. Women and children are more susceptible to social media sexual offenses. Emphasize is given to such incidents 1. The main pitfall of the IT Act 2011 is that it infringes on individual privacy 2.

The Central Government has passed the Information technology Rules 2021 under the powers conferred to it by Sections 69A(2),79(2)(c), and 87 of the Information Technology Act, in solidarity with the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting. The online publishers and social media intermediaries must adhere to the Constitution and subject themselves to domestic law.

As per data by PIB, there are 53 Crore WhatsApp users, 44.8 YouTube users, 41 Crore Facebook users, 21 Crore Instagram users, and 1.75 Crore Twitter users. These statistics show the growth of social media intermediaries in the country. Facebook was a successful tool in election 2021. Also, during the pandemic, the use of technology and social media gained importance. Cyberspace has become a tool for expressing oneself and voicing views and opinions.

The regulation of contents on the internet is always a cumbersome task. It is a subject of many criticisms, especially in this pandemic era. These criticisms compelled the authorities to formulate new strategies for regulating those contents. Most of our concerns are unaddressed in the final Rules of IT Act 2011 and that the Rules exceeded the scope of the parent act.

The Information Technology Rules, 2011 offered more freedom to content creators. IT rules 2021 requires the appointment of specific officials by the intermediaries 3. The main objective is to address the grievances of users and to regulate online content. This paper discusses the other requirements and the main pitfalls of The Information Technology Rules 2021.

IT Rules 2021

In this pandemic era, social media has become a tool of public voice. OTT platforms also gained immense importance. The Information Technology (Guidelines for intermediaries and digital media ethics code) Rules, 2021 is mainly aimed at improving the privacy and accessibility of users.
The rules provide guidelines for intermediaries and related entities.

The definitions of the various entities specially mentioned in the act are:
News Aggregator:
According to Rule 2[o], a news aggregator is an entity having a vital role in determining and publishing news and current affairs. It can be a computer resource that helps the users to access news articles and current affairs 4.

Publisher Of News And Current Affairs Content:

is an online paper, news portal, news aggregator, news agency, and such other entity it shall not include newspapers, replica e-papers of the newspaper, and any individual or ordinary user who is transmitting content for noncommercial activity 5.

Publisher Of Online Curated Content:

has a vital role in determining and publishing news and current affairs. It may be a computer resource that helps the users to access news articles and current affairs. It does not include any individual or a user who is transmitting content for noncommercial activity 6.

Significant Social Media Intermediary:

if the number of registered users in India is more than 5 million, then it is a significant social media intermediary 7.

Social Media Intermediary:

social media intermediary is an intermediary which provides an online connection between two or more users and allows them to manipulate, modify or access information using its services 8.

Analysis Of The Intermediaries Guideline
  1. Due Diligence For Intermediaries

    According to IT Rules2021, an intermediary, a social media intermediary, and a significant social media intermediary should observe the following requirements:

    According to the Constitution, there shall be no action that threatens the sovereignty and integrity of India, security of the State, incites riots and disturbs public order, any offense related to rape, child sexual abuse, and sexually explicit material. The intermediary should remove such any information within thirty-six hours from receipt of actual knowledge if an intermediary receives any information regarding those illegal activities prohibited by law through a written order of the court 9.

    In case of grievances regarding online content, there should be a Grievance reparation mechanism for dealing and disposing of the grievances. The rule requires designating a grievance officer, who is required to acknowledge the complaint within twenty-four hours and redress it within fifteen days of its receipt. There will be an Online Grievance Portal established by the Central Government, which would act as a central repository for accepting and disposing of cases. Furthermore, it required that the foreign social media intermediaries should have a physical address in India 10.

    Rule 3(2) (b) of the IT Act, 2021 requires the intermediaries to have a complaint mechanism where the complainant can provide the communication link.

    Upon the receipt of a complaint by a complainant, the intermediaries should remove them within twenty-four hours. The unregulated contents include abusive materials, full /partially nude images, or images containing sexual activities transmitted through them for harassing or insulting, or intimidating another person 11.
     
  2. Due Diligence Requirements For Significant Social Media Intermediaries

    For a significant social media intermediary, there should be a Chief Compliance Officer. The intermediaries must appoint them. The officer should ensure compliance with the provisions of the act. If the intermediaries do not follow the required diligence, the chief compliance officer is responsible for further proceedings regarding any third-party information. He is a person holding a managerial position and a resident of India. The intermediaries should appoint a Nodal officer also. The officer should unremittingly ensure association with law enforcement agencies.

    He should also ensure that the companies strictly adhere to the directions and orders of the act. He has to be an employee of the company apart from the Chief Compliance Officer and a resident of India. Also, there should be a Resident Grievance Officer. He should ensure that the intermediaries follow the due diligence in matters relating to the grievance mechanism. A compliance report is published by a significant social media intermediary every month. User grievances received and the actions taken by the intermediaries should be mentioned in the report. It should also mention the details of the links removed by the intermediary following a complaint 12.

    As per Rule 4(2), upon an order passed by a competent court or authority, the intermediary providing services primarily of messaging nature shall enable the identification of the first originator of the information on its computer resource. The intermediaries have to enhance themselves with an artificial intelligence tools for automated filtering. Automated filtering is the filtering of the online content by an automatic algorithm.

    It identifies contents that fall in the following categories:
    • Illustrates any act or stimulation in any form involving rape, child sexual abuse, or conduct-whether explicit or implicit.
    • Access to the data which is identical to unlawful content is disabled or removed by the intermediary 13.
    The intermediaries notify the online user when accessing content that falls under the filtered out category. Social media intermediaries have some grievance mechanisms to answer the complaints of the users. A token is given to the users so they can track the status of such complaints.

    Moreover, there is a central repository at the government level. The intermediary must report the initiatives taken over the complaint to the repository. No grievances remain unanswered. Every aggrieved user has a reasonable opportunity of being heard upon the removal of the contents by a social media intermediary.

    The users can also request for reinstatement of access to such information. The delivery of such a request must be within a reasonable time. Another utmost aspect of the Act is the identity verification of the account by registered users. The users have to verify their accounts and provide an active mobile number. So the mobile number can be linked to the user accounts. The user accounts will be assigned with a mark of verification upon mobile number linkage, thus displaying each verified accounts to every other user.
     
  3. The Obligation Of News And Current Affairs Content

    The ministry will have access to the user account details with the publishers of news and current affairs.
    Rule 7 mentions the non-applicability of safe harbor protection under section 79 of IT act 2000 if the intermediaries fail to observe the rules 14.
     
  4. Publishers Of News In The Digital Media

    The IT Rules 2021 attempt to regulate digital media new publishers by a three-tier grievance redressal mechanism. They are as follows:

    (STAGE 1): The publishers have by themselves adhere to the rules, which will be otherwise dealt with by the Grievance Officer.

    (STAGE 2): If the Grievance officer is unable to regulate the content within fifteen days, it will be forwarded to the self-regulating bodies registered under the Ministry of Information and Broadcasting. These bodies will check the adherence of the publishers to the code of ethics and address the dispute not resolved within the given fifteen-day period. Such body includes a retired judge of the Supreme Court, a High Court, or an independent eminent person as the head, and it should have not more than six members.

    (STAGE 3): There will be an oversight mechanism constituted by the ministry to ensure the publisher's adherence to the code of ethics.

    The office of ministers will appoint an authorized officer, an officer not below the rank of joint secretary to the Central Government. The authorized officer has the power to delete or modify the information. In case of urgency, he can block the same. The ministry will constitute an Inter-Departmental Committee having representatives of various ministries and domain experts as its members.

    The head is an Authorization officer. The functions of the inter-departmental committee include hearing and examining complaints and grievances and make recommendations to the ministry. The committee can make recommendations regarding castigating entities. It may also indicate to provide disclaimer wherever needed.

    Further, the publishers should disclose the information relating details of its entity to the ministry. It is also required to furnish specified documents for communication and coordination. A compliance report has to be published by the publisher every month 15.
     
  5. IT Rules 2021 And Ott Platforms

    New IT Rules specify the age limit for access to OTT platforms like Netflix, Hotstar, Disney, etc. It also enables parental control and locks for appropriate ages.
    The OTT platforms divide themselves into five categories: U (Universal), U/A 7+ (for the age group above 7), U/A 13+ (for the age group above 13), U/A 16+ (for the age group above 16), and A (Adult). For U/A 13+ and U/A 16+, there is an enactment of parental control as an extra protection mechanism. For content classified as adults, there should be some mechanism to verify age. The government specifies the OTT platforms to display the classification rating on every content or program. It should also show the nature of the program the user is watching.

Legal Analysis
The framers of the rules never adopted public consultation or deliberation by experts during the framing of IT Rules. This flawed consultation is the main drawback while regulating the online news portals and video streaming platforms. The Ministry of Electronics and Information Technology had articulated the IT rules 2021. It never passed through any legislative process.

The web series �Tandav� created controversy and, it insisted on legislation for regulating the OTT platforms. Thus, the draft Intermediaries Rule 2018 was amended to IT rules 2021. There was no active consultation with the stakeholders. The flawed consultation and lack of legislature process show that the Government had passed it unanimously and unilaterally.

The rules not only provide loopholes to intermediaries but also imposes burdens on organizations and people. In a democratic form of government, the freedom of speech and expression is of utmost importance and, this freedom hinders when people are reluctant to express their perspectives.

Rule 9(1) and Rule 9(3) of the act had stayed by the Bombay High Court, as it infringes the freedom of speech and expression. According to these rules, the publishers cannot express their views against the administration. The power relating to publishers of news in digital media conferred by the act will be allotted to political parties by the three-tier verification mechanism.

Thus, the adjudicatory power will be vested with the ministry. It will lead to arbitrariness and misuse of provisions.

The content takedown timeline is thirty-six hours. The intermediaries should answer the request from a law enforcement agency regarding unlawful content within seventy-two hours. But in most cases, the intermediaries do not have sufficient information to respond within that given timeline. There are situations where the organization cannot meet the timelines because of the unavailability of data. In that case, it requires more clarification.

Take the example of a social media platform:
Twitter. The platform should take action on an unregulated content complaint within twenty-four hours. If not, the police can arrest the person who sent out the tweet and the intermediary. Here Twitter acts as the intermediary. The authorities want intermediaries to monitor content published more closely. The first indication of Twitter losing status as an intermediary came in Ghaziabad in Uttar Pradesh for the content listed by a subscriber in connection with an alleged assault on a Muslim man.

Social media platforms use an automatic filtering mechanism to clear off harmful content and images. The filtering mechanism uses keywords or text/images for filtering. Automated tools used in filtering are not always accurate in understanding the circumstances under which the contents are shared. Artificial intelligence is an evolving concept which is still in its inception stage. Its efficiency is challenging in filtering content that uses regional languages.

The mechanism results in the removal of large chunks of data from social media. It also causes mass surveillance. It also has an impact on privacy. Moreover, the technical and financial burden in the companies in its implementation is heavy.

Rule 4(a) mandates the significant social media intermediaries to appoint a Chief Compliance Officer, a nodal contact person, and a Resident Grievance Officer. All the three should be a resident of India, which creates hardships for multinational companies. The requirement of a local office also creates a burden for international companies.

The main security feature criticized is the originator requirement. This traceability requirement chips away privacy and freedom of speech. It will harm transparent end-to-end encrypted communication. The rule is an evident intrusion into individual privacy. Here according to this requirement, there is an end-to-end tracing of all messages to track the originator. The encryption of all the viewers should invariably break. It causes a threat to privacy.

In adherence to Rule 4(2), WhatsApp relied on the Supreme Court's decision on Justice K S Puttaswamy vs Union of India 16 and filed a lawsuit against the Union of India in the High Court of Delhi. It stated that the originator tracking requirement would break the round-way encryption and erodes people's right to privacy. Responding to WhatsApp's appeal, the Ministry of Electronics and Information Technology of India clarified that "the rule could be only applied as a trump card when there is an infringement to the security and integrity of India, foreign policies, public order, or offenses relating to rape or sexual abuse.

A writ of mandamus had been filed in the high court of madras in Antony Clement Rubin vs Union of India (T.C. Civil No.189 of 2020)17 on litigation related to the linking of aadhar cards with social media user's accounts. However, the High Court of Madras shifted the focus to traceability of the originator and transferred the suit to Supreme Court.

The problems relating to national security cannot make a veil of mass surveillance. Thus, the Government claiming national security and decrypting each of the messages is not justifiable. There must be some reasonable explanation for mass surveillance. This surveillance is another issue claimed by WhatsApp. Keeping all the messages send and received through the server for the national security process is a privacy encroachment. Lack of digital literacy also can be misused. Along with the giant social media companies, the public should be made aware of the new rules.

In this digital era, every citizen needs to have basic knowledge of the IT Act. The citizens are deeply interested in platforms that bring up relevant information and find it as a space to express their views. There should be a balance between reasonable restrictions and privacy. Privacy is not secondary.

India is the largest democratic country in the world, and we should not surrender our natural rights. Thus, regulating the contents of social media should not intrude into our privacy. The control vests with the Government, and so the test of arbitrariness should be applied. It should not violate the freedom of speech and expression.

End-Notes:
  1. Selvi J Jayalithaa v Penguin Books India CS No.326 of 2011 & Justice K S Puttaswamy vs Union of India. (2017)10 SCC 1
  2. Subranshu Rout V State of Odisha (2020) SCC Ori 878
  3. AGIJ Promotion of Nineteenonea Media Pvt. Ltd. & Anr. v. Union of India & Anr. Writ Petition (L.)No.14172 Of 2021 And Public Interest Litigation (L.) No.14204 Of 2021
  4. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2[o]
  5. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2[t
  6. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2[q]
  7. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2[v]
  8. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2[w]
  9. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(1) (b) (vii)
  10. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(2) (a)
  11. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(2) (b)
  12. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4
  13. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4(2)
  14. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 7
  15. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 9(3)
  16. Ibid At 2
  17. Antony Clement Rubin vs. Union of India T.C. Civil No.189 of 2020

    Award Winning Article Is Written By: Ms.Susan Zacharia
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    Authentication No: NV132644814622-20-1121

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