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

This essay aims to analyse the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as the "IT Rules"), the first draft of which came out in 2018. The new IT Rules replace India's Intermediary Guidelines Rules of 2011.1 The IT Rules have been formulated by the central government in cooperation with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB).

The IT Rules came into force on the 25th of February for social media intermediaries2 and on the 26th of May 2021 for significant social media intermediaries 3. The rules have a binding effect on social media sites as well as OTT (over-the-top) services, it lays out a set of restrictions and mechanisms to govern the said services that are used by millions of Indians through the internet.

Features of the legislation include a required Grievance Redressal Mechanism to be set up by intermediaries which would register and resolve complaints of users, removal of unlawful information, and a distinction between social media intermediaries and significant social media intermediaries based on the number of users (significant social media intermediaries are also required to follow additional due diligence) etc.4 The legislation has stirred controversy and is currently being challenged in courts on the grounds of being unconstitutional and violating fundamental rights such as free speech and privacy.

In 2018, there was a debate in the parliament on the issue of misuse of social media and the spreading of fake news, shortly after, the Ministry of Electronics and Information Technology (MeitY) prepared a draft of Information Technology (Intermediary Guidelines) 2018. The purpose of the draft was cited to curb misinformation, provide security, prevent the sovereignty of India by guiding it against the threats of cyber war and terrorism, and prevent the spread of obscene imagery on the internet.

In the same year, the Honourable Supreme Court of India in a Suo Moto Writ Petition case where the petitioner was a non-governmental organization (whose aim is to prevent sex trafficking and eliminate forced prostitution) directed the government that it may frame guidelines to "eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications".5

The previous Information Technology (Intermediary Guidelines) 2011 did not regulate Digital Media News and OTT platforms. The development has been, broadly speaking, to put restrictions on the free flow of information on the internet.

The new IT rules were made to revise the older 2011 IT rules and the need to revise them was because of the rise in the spread of misinformation (the number of Indians on WhatsApp and YouTube is estimated to be around 53 and 44.8 crores respectively) and the commission of various crimes being facilitated using social media.6 The IT Rules specify the information that is not to be shared via intermediaries and all of it is related to acts that are crimes.

For example, sharing of child pornography, revenge porn, and information that violates the security of others, disturbs the sovereignty of India etc. The rules also provide for a grievance redressal mechanism and self-regulatory system through which the intermediaries can put an end to the information that is not permitted.7 It also seeks to protect the dignity of people, especially women who are often the target of revenge porn and suffer an invasion of privacy. In Facebook Vs the Union of India8, the court emphasised the urgent need to identify the originator of information on intermediaries.

The IT Rules help in identifying the offender of a heinous crime such as rape, child sexual abuse etc as it has a rule where it is stated that the court can pass an order to direct the intermediaries to identify the originator of the information. It puts forth the well-being of society as paramount and devises guidelines to tackle the rapidly growing social media industry which can easily be used to facilitate a wicked crime.

The supporters of the new IT Rules argue that the regulation of OTT platforms is not a curb on the right of freedom of speech as the regulatory system that is required to be set up is divided into three tiers and the OTT platform itself plays a role in the establishment of the second tier.9 Moreover, the grievance system is said to be in the interest of the consumers as their complaints have gotten a platform and the speedy disposal of complaints is also emphasised upon.

Secondly, the classification of the content for different age groups that is required by the new IT Rules is already commonplace in many developed countries like Singapore, the U.K, Australia etc. They see the new IT Rules as a much-needed curb on the blatant spread of fake news and obscenity on the internet. The government has had discussions with the OTT platforms before on several occasions and urged them to develop a self-regulatory mechanism, however, a concurrence between the platforms and the government could not be reached.

The Ministry of Electronics and Information Technology, after publishing the first draft of the rules in 2018 also invited the public for any comments or criticism on the same, it received 171 comments from individuals, civil society, industry associations and organizations.10 Hence, some see it as justified that the government after following the democratic process of discussion and debate decided to follow through with the much-needed framed legislation.

Critics have argued against the new IT Rules on two bases, it is violating the right to privacy and the right to freedom of speech. Three UN Rapporteurs wrote to the Government of India about the rules compelling content filtering so that the providers can review content which would lead to a violation of the end-to-end encryption provided by the platforms and thus, an invasion of the privacy of users.11

Moreover, it is suspected that the government's real intentions to put these mechanisms are to suppress dissent, organization of protests etc which is commonly done through social media. Rule 4 (2) which enables the social media platforms to identify the first originator of the message has also been criticized as being violative of the right to privacy as well as free speech. It is argued that due to the rule not only the end-to-end encryption would be broken but also intermediaries would have the record of every user's information which would make it easier for the government and other malevolent individuals and groups to misuse.12

The legislation has been criticized for being vague which could lead to overzealous efforts to curb information as the intermediaries would not want any mischief to take place on its platform as it might have to face consequences. The government has also been criticized for shifting its responsibilities to intermediaries.

The IT Rules have created an environment of fear in the entertainment industry and have already had a detrimental effect on the creative freedom of filmmakers. According to some industry insiders, platforms are stalling the release of some of their shows and scanning scripts to avoid any socio-political controversy.13 India already has a censor board which not only decided for which age the film is appropriate, but as its name suggests, it also has the power to censor films.

Hence, OTT platforms became a boon for filmmakers as well as the audience that does not fit into the mainstream and is willing to critically think about ideas that many might consider blasphemous. The true expression of free speech and free market choice could be seen through the rising of OTT services, however, that has seemed to have lasted short as the conservative government could not see such freedom go unchecked.

Now that anyone can register a complaint against any content, it is not only possible but most likely that such a feature would be abused by ideologically motivated groups to suppress any content that might go against their subscribed ideology. The government, however, in its response rejected any such possibility as an excuse for OTT platforms to not want to be held accountable.14

The Indian government has referred to the legislative move as liberal, progressive, and contemporaneous.15 The government in its press releases has stated that it acknowledges the roles these social media platforms play in a healthy functioning democracy as they give the citizens a platform to voice their opinions, and criticism of the government but at the same time the government believes that these platforms need to be kept inbound with the constitution and laws of the land.

It emphasised how the platforms can be used if they are not held accountable and it is implied that the new IT Rules help keep the intermediaries liable and accountable. The government states that the grievance mechanism system and the self-regulation mechanism have been made while keeping in mind the importance of freedom of the press and creative freedom. Reasons cited by the government for the need for the new rules include curbing the spread of fake news, obscene imagery, revenge porn protecting the dignity of women, abusive language and preventing disrespect of religious sentiments, maintaining public order etc.

The government also referred to the Supreme Court and how it has emphasised the need for such rules in the Prajawala case and Facebook Vs the Union of India. In response to the Three UN Rapporteurs, the government stated that the first originator of the message is only to be identified in cases where there "is giving rise to violence, impinging on the unity and integrity of India, depicting a woman in a bad light, or sexual abuse of a child and when no other intrusive options are working"16.

Replying to the concerns about the encroachment of the right to privacy of the users the government referred to the famous K.S Puttuswamy Vs Union of India17 and emphasised how the IT Rules 2021 are consistent with the principles of proportionality and reasonableness as held by the honourable Supreme Court in the said case.

There is no denying that there is an urgent need for a well-functioning as well as a well-implemented policy that can protect individuals against cybercrimes, invasion of privacy, misinformation, revenge porn, sex trafficking and other crimes that are either perpetuated by or are a result of the recent drastic development in the digital industry. The rise of smartphones and easily affordable as well as accessible internet, and news reports of mob lynching due to the circulation of rumours using modern technology do make one ponder over the possible measures that can be taken against such hideously ugly manifestations of the human mind.

If there are no specified boundaries, however imperfect they may be, the future could be tragic for society. Since the phenomenon is so recent it is not an easy task to pinpoint exactly what it might lead to, in what proportion and most importantly, due to what cause. Determining the cause could bring us closer to the remedy but there is also a cost to waiting too long to act. There is a danger of faulty framing of a policy leading to consequences as worse as not taking any action.

The solution to such a problem seems to be the democratic process of debate, discussion, and criticism. To fix an error one first needs to be made aware of it and the errors presented on both sides can only be realized through an active, intelligent conversation between people who disagree.

References:
  • K.S Puttuswamy Vs Union of India 2017 AIR SC 4161 Press Information Bureau (20/06/21)
  • OTTs tread cautiously, cancel shows, Lata Jha, Livermint (09/03/21) https://www.livemint.com/industry/media/otts-tread-on-cautious-ground-axe-shows- 11615188592226.html
  • India's Draconian Rules for Internet Platforms Threaten User Privacy and Undermine Encryption, KATITZA RODRIGUEZ and KURT OPSAHL, Electronic Frontier Foundation (20/07/21) https://www.eff.org/deeplinks/2021/07/indias-draconian-rules-internet-platforms- threaten-user-privacy-and-undermine
  • Doubts about new IT rules are groundless, Amit Khare, Indian Express (08/03/21) https://indianexpress.com/article/opinion/columns/social-media-it-act-new-rules-modi-govt- control-digital-content-7218741/
  • Facebook Vs the Union of India 2019 SCC ONLINE SC 1717 Press Information Bureau (25/02/21)
  • Prajwala Vs Union of India and others 2018 SCC ONLINE SC 3418
  • Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
  • As new IT rules come into force on May 26, Facebook says it aims to comply, Yuthika Bhargava, The Hindu (25/05/21) https://www.thehindu.com/news/national/facebook-says-it-aims-to-comply-with- indias-new-it-rules/article34638367.ece Official Gazette of India (25/02/21)
  • Government set to notify new social media norms, Surabhi Agarwal, The Economic Times (09/04/21) https://economictimes.indiatimes.com/tech/internet/government-set-to-notify- new-social-media- norms/articleshow/75059440.cms?
  • Why India's new rules for social media, news sites are anti-democratic, unconstitutional, Scroll.in (27/02/21)
    https://scroll.in/article/988105/explainer-how-indias-new-digital-media- rules-are-anti-democratic-and-unconstitutional
  • Unclear understanding of 'unlawful content' may end up curbing free speech, Business Standard
    https://www.business-standard.com/article/current-affairs/unclear-understanding-of- unlawful-content-may-end-up-curbing-free-speech-118122600084_1.html
  • Liability, Not Encryption, Is What India's New Intermediary Regulations Are Trying to Fix, The Wire
    https://thewire.in/government/liability-not-encryption-is-what-indias-new- intermediary-regulations-are-trying-to-fix
  • Resurrecting the marketplace of ideas, Business Line
    https://www.thehindubusinessline.com/opinion/resurrecting-the-marketplace-of- ideas/article26313605.ece
End-Notes:
  1. Govt announces new social media rules to curb its misuse, The Hindu (25/02/21) https://www.thehindu.com/news/national/govt-announces-new-social-media-rules/article33931290.ece
  2. Official Gazette of India (25/02/21)
  3. As new IT rules come into force on May 26, Facebook says it aims to comply, Yuthika Bhargava, The Hindu (25/05/21) https://www.thehindu.com/news/national/facebook-says-it-aims-to-comply-with-indias-new-it-rules/article34638367.ece
  4. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
  5. Prajwala Vs Union of India and others 2018 SCC ONLINE SC 3418
  6. Press Information Bureau (25/02/21)
  7. Ibid
  8. Facebook Vs the Union of India 2019 SCC ONLINE SC 1717
  9. Doubts about new IT rules are groundless, Amit Khare, Indian Express (08/03/21)
    https://indianexpress.com/article/opinion/columns/social-media-it-act-new-rules-modi-govt-control-digital- content-7218741/
  10. Ibid.
  11. India's Draconian Rules for Internet Platforms Threaten User Privacy and Undermine Encryption, Katitza Rodriguez And Kurt Opsahl, Electronic Frontier Foundation (20/07/21) https://www.eff.org/deeplinks/2021/07/indias-draconian-rules-internet-platforms-threaten-user-privacy-and- undermine
  12. Ibid.
  13. OTTs tread cautiously, cancel shows, Lata Jha, Mint (09/03/21)
    https://www.livemint.com/industry/media/otts-tread-on-cautious-ground-axe-shows-11615188592226.html
  14. Press Information Bureau (20/06/21)
  15. Ibid.
  16. Ibid.
  17. K.S Puttuswamy Vs Union of India 2017 AIR SC 4161

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