AN OVERVIEW OF THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021

 ABSTRACT

As society is advancing and progressing towards the advancement of technology, we are dwelling upon different kinds of new technologies. With the coming of new technologies, there have been various concerns about the usage of these technologies in accordance with the laws of the land, the misuse of these technologies and its attempt by law to check such kind of arbitrary use. In this era of surveillance, there are many issues concerning privacy because of the technology that we use. The Indian Government has laid down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, especially in the backdrop of recent controversies that have erupted concerning OTT platforms to check the arbitrary use of cyber technology and establish a mechanism to deal with the cyber issues. The OTT platforms were not covered under the old legislation. The amended rule includes both social media platforms and OTT platforms under the ambit of the Ministry of Information and Broadcasting. The Government refers to these rules as "soft-touch regulatory architecture" as it is a form of softer intervention where the Government can surveil these platforms closely and regulate their functioning through legal and informal mechanisms. No freedom can be exercised at the cost of undermining society's socio-cultural values in general and India in particular. Absolute freedom poses a great danger to youngsters and teenagers who are vulnerable at such sensitive ages to fall prey to such non-sensible realities at such premature age.                         

"The Government of India's Ministry of Electronics and Information Technology enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as IT Rules, 2021) on 25 February 2021. These Rules were formulated in the exercise of powers under Section 87(2) of the Information Technology Act, 2000 ("IT Act") which stand replaced by the Information Technology (Intermediary Guidelines) Rules, 2011."^[1]

The Intermediary Guidelines are intended to serve a dual purpose:

1. Increasing the accountability of social media platforms (such as Facebook, Instagram, and Twitter) in order to prevent abuse and misuse; and
2. Empowering social media users via means of setting up a three-tier redressal mechanism for efficient grievance resolution.

It is also inclusive of regulation of "Digital Media" that is published by a "publisher", who can be a publisher of current affairs and news content or online curated content (OCC). While the Ministry of Electronics and Information Technology administers rules regarding information and technology intermediaries, the Ministry of Information and Broadcasting administers the Code of Ethics.

These new rules bring about the most significant changes for intermediaries in terms of increasing due diligence obligations and liability in instances of non-compliance.

DUE-DILIGENCE BY INTERMEDIARIES

1. An 'intermediary' is defined under sec 2(w) of the IT Act to extensively encompass all kinds of online service providers. The IT Rules, 2021 introduce two different classes of intermediaries:

Social Media Intermediaries (SMIs)^[2] and

Significant Social Media Intermediaries (Significant SMI)^[3]

SMIs are intermediaries that primarily "enable online interaction between two or more users and allow them to upload, create, share, disseminate, modify or access information using its services, and Significant SMIs are classified as those SMIs with users above such threshold as may be notified by the Central Government". The Government has set Fifty Lakh registered users as the threshold.^[4]

2. Compliances to be met by an Intermediary under the Rules

Guidelines for all Intermediaries:

●       Prominently publish its terms of use "on its website, mobile application, or both, as the case may be", which are to inform users not to upload certain content.^[5]

●       Periodically, not less than once a year, tell users about its terms of use and alterations to it and abide by them or risk termination of access or user rights.

●       Not host, store, or publish prohibited content^[6], and if done so, put off or disable access to it within thirty-six hours on receipt of a valid court order or governmental notification.^[7]

●       For the purposes of investigation, any information that is deleted or to which access is restricted due to infringing content must be kept for 180 days.^[8]

●       Data gathered from users for registration to be retained for 180 days after cancellation or withdrawal of registration.

●       Take rational measures to secure its computer system and information by implementing a reasonable security system and standards as stipulated.^[9]

●       Within 72 hours of receiving an order, provide information or help to the authorized Government Agency for investigative, cyber-security or protective causes.

●       Concerns about cyber-security should be reported to the proper authorities.

●       Display the Grievance Officer's contact information on the company's website, mobile app, or both. Acknowledge complaints within 24 hours, and dispose them of within 15 days from their receipt. However, suppose someone files a complaint against a content that, prima facie exposes a person's private region, shows them incomplete or partial nudity, depicts them in any sexual act or conduct, or is impersonation in the digital form, including artificially transformed photographs. In that instance, the intermediary must make every effort to prevent or restrict access to the same.

●       Not adopt any technical measures which can bypass the law.

●       Publish a clear assertion on their website, mobile application, or both, informing publishers of news and current affairs content that they need to furnish user accounts details to the Ministry of Information and Broadcasting.

Additional guidelines to be observed by Significant SMI's are summarized below.

●       Appointment of a "Chief Compliance Officer," a "24 hour nodal contact person," and a "Grievance Officer," all of whom must be Indian residents.^[10]

●       Create a monthly compliance report that includes information about complaints received and actions done.

●       Significant SMIs that primarily provide message services will use valid orders to allow "identification of the 'first originator' of information on computer resources as required."^[11]

●       Information that is advertised, marketed, sponsored, owned or exclusively controlled for direct monetary benefit needs to be marked as so on behalf of another person.

●       Adopt technology measures to perceive and cast off certain information, its copies, even though previously identified and removed.

●       Must have a physical contact address in India, which will be published on the company's website, mobile app, or both, as appropriate.^[12]

●       The grievance redressal mechanism is to be equipped with a unique tracking ID for every grievance, with which the status of such complaint could be checked.

●       Allow users who register in India or use their services in India to voluntarily verify their accounts, including through active Indian mobile numbers, resulting in a visible and demonstrative verification mark viewable to all different and other users of the service.

 

3. Despite the fact that the additional rules apply only to Significant SMIs, the Ministry of Electronics and Information Technology may require any intermediary to follow them if its services allow information to be published or transmitted in a way that creates a material risk of harm to India's integrity, sovereignty, security, friendly relations with foreign states, or public order. Furthermore, all intermediaries are subject to directions, including blocking information in situations of emergencies. Suppose an intermediary fails to follow the rules. In that case, it shall not be entitled to the Safe Harbour Protection [Section 79(1) of the IT Act, that provides immunity from liability for acts of third parties on their platform] and be subject to the numerous liabilities as provided under the Information Technology Act and other content cynical laws such as the Indian Penal code, 1860.

REGULATION OF DIGITAL MEDIA

Code of Ethics for News-Current Affairs & Online Curated Content

4. The Digital Media's Code of Ethics applies to publishers of news and current affairs and OCC. Such publishers have a physical presence in the Indian Territory or carry out systemized business activity of making their content accessible in India. Further, publishers need to give information to the Ministry of Information and Broadcasting (MIB) concerning their entity within 30 (thirty) days from the publication date of the 2021 Rules or the publisher's operation or coming into existence in India. Although news and current affairs are to be regulated under the existing laws, there have been content specified rules for regulating OCC.
5. OCC under Rule 2(q) of IT Rules, 2021 is defined as any curated catalogue of audio-visual content, apart from news and current affairs content, that is owned by, licensed to, or contracted to be transmitted by a publisher of OCC, and made available on-demand, which consists of, but is not always limited to, subscription, over the internet or computer networks, and includes films, audio-visual programs, documentaries, TV programs, serials, podcasts, and other such content. A 'publisher of OCC' is someone who plays a key role in ensuring that "OCC that is made available, makes available to users a computer resource that allows such users to access OCC over the internet or computer networks, and other such other entities," which are functionally similar to publishers of OCC, but excludes any individual user who is not transmitting OCC during systematic business, professional, or commercial activity.

Examples: Netflix, Amazon Prime Video, Disney+Hotstar, AltBalaji, Zee5, SonyLIV, Viacom 18 (VOOT), MX Player, Jio Cinema, Eros Now etc.

Envisioned Grievance Redressal Mechanism

6. The 2021 Rules proposes a three-level regulatory mechanism:

Level I^[13]  

The first level is made up of publishers who appoint an Indian based Grievance Officer to receive complaints, recognise them, and respond within 15 (fifteen) days.    

Level II^[14]

The second level comprises one or more self-regulating publishers, comprising eminent persons from relevant fields, and is to be registered with the MIB to oversee and ensure that publishers abide by the 2021 Rules. In addition, it can hear the appeals of grievance redressal from Level I.

Level III^[15]

The 'Oversight Mechanism,' which is administered by the MIB (Ministry of Information and Broadcasting) through the appointment of an Authorized Officer, is the third level. They also serve as the chair of the Inter-Governmental Committee, which advises the Ministry of Information and Broadcasting on matters such as blocking information in emergency situations. It also serves as an appellate body for grievances from Levels I and II, as well as allegations of violations of the prescribed ethical obligations.

Classification of Online Curated Content and its Guidelines

7. The following rules must be followed when categorising OCC depending on content:

●       A publisher should not transmit, publish, or exhibit any illegal content, and should take into account all relevant elements while keeping in mind India's multi-racial and multi-religious history.

●       "Subject to its nature and type, the publisher is to categorize OCC through age-restricted ratings as U/A 7+, U/A 13+, U/A 16+ and A (Adult), based on themes and violence, sex, messages, nudity, language, drug and substance abuse, and horror."

●       Each piece of information or show should start with a viewer discretion warning. The content-rating system must be prominently displayed, as well as "a content description that informs the user about the content's nature. Access-control systems, such as parental locks, are required for OCC rated higher than U/A 13+, while 'A' rated content requires a credible age verification mechanism. Content ratings must be prominently shown on any print, television, or online promotional/publicity material."

●       OCC is to be classified based on the context, theme, tone and impact, and target audience of the content with content ratings and descriptors to be based on relevant issue-related guidelines provided with regard to psychotropic substances, discrimination, liquor, smoking and tobacco, language, imitable behaviour, nudity, sex, and violence.

●       Regulation of Over-the-Top (OTT) platform content has recently been in the news, with Amazon Prime Video's 'Tandav' causing controversy. The High Court of Allahabad refused the company's 'Head of India Originals' pre-arrest bail in relation to criminal proceedings filed against the show's content. The order was challenged by the aggrieved in Aparna Purohit versus State of Uttar Pradesh^[16] before the Supreme Court of India, which made observant remarks. The Bench discovered that the 2021 Rules were essentially guidelines with "no provisions for prosecution or fine" and no effective process for screening or taking action. The Solicitor General of India appearing in the matter declared that the Central Government will take appropriate steps toward regulation or legislation, which would then be presented to the Court.

Looked at in entirety, the 2021 Rules stand to impose diverse obligations on the intermediaries bringing them closer to regulation like the more traditional forms of media. The development of the Intermediary guidelines is essentially an endeavour to develop an archetypal soft-touch, the self-regulatory structure associated with a three-tier grievance redressal mechanism for digital media platforms operating in India. However, compliance with Intermediary guidelines is probably a tough task for social media and digital media platforms. It is also being contended as an endeavour to restrict the freedom of speech and expression. Hence, a strict balance needs to be drawn to deal with the concerns of protection and safeguarding of rights of victims of social media versus individuals' freedom of expression.

About the authors

Kashish Ali is a third year law student at Faculty of Law, Jamia Millia Islamia University, Delhi. She is currently an intern at Dua Associates. Her interest lies in Mergers & Acquisitions and IT Laws. For any discussion related to the article, she can be contacted via mail at alikashish0203@gmail.com.

Garima Mishra is a fifth year law student at Amity Law School, Noida, Amity University. She is currently an intern at CSL Finance Limited. Her interest lies in IT Laws, Project Finance and Arbitration. For any discussion related to the article, she can be contacted via mail at garima.mishra1706@gmail.com.

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^[1] Information Technology (Intermediaries Guidelines) Rules, 2011, available at 16 THE GAZETTE OF INDIA :EXTRAORDINARY [ PART II-SEC (meity.gov.in) (last visited on  14 December, 2021).

^[2] Information Technology (Intermediaries Guidelines) Rules, 2021, Rule 2(w) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 14 December, 2021).

^[3] Id., Rule 2(v) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 14 December, 2021).

^[4] Ministry of Electronics and Information Technology vide Notification S.O 942(E) available at Gazettes | Ministry of Electronics and Information Technology, Government of India (meity.gov.in) (last visited on 14 December, 2021).

^[5] Supra note 2, Rule 3(b) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 15 December, 2021).

^[6]Id., Rule 3(d) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 15 December, 2021).

^[7]Id., Rule 3(e) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 15 December, 2021).

^[8] Id., Rule 3(b) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 16 December, 2021).

^[9]Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011 available at https://www.meity.gov.in/writereaddata/files/GSR313E_10511%281%29_0.pdf (last visited on 17 December, 2021).

^[10] Supra note 2, rule 4(a), (b), (c) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 18 December, 2021).

^[11] Id., Rule 4 available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 18 December, 2021).

^[12] Id., Rule 4(5) available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 18 December, 2021).

^[13]Supra note 2, rule 11 available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 18 December, 2021).

^[14]Id., rule 12 available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 18 December, 2021).

^[15] Id., rule 13 available at IT(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 English.pdf (mib.gov.in) (last visited on 18 December, 2021).

^[16] 2021 SCC OnLine All 179.