This Article is written by Saksham Suneja student of Modi Law College, Kota.
On 25th Feb 2021, the Government of India by using its power vested under Section 87 of Information Technology Act, 2000(IT Act) notified the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 through an official Gazette, replacing the IT Rules of 2011.
With the rapid increase in the no. of users of the Internet, crime, abuse, harassment, fake news have also increased parallelly, therefore it was necessary to bring some appropriate rules which can prevent the misuse and also established a forum to look after the grievances of people and the functions of all intermediaries.
- In the Prajawala letter Case of 2018, the Supreme Court had strictly directed the Government to prepare the Standard Operating Procedure (SOP) for Cyber Police Portal handling complaints about the content related to child- pornography, any obscene or sexual abuse material, rape imaginaries, and videos.
- In 2020, the AD-hoc committee of Rajya Sabha while addressing the issue related to child-pornography submits its report stating that it is necessary to break the end-to-end encryption algorithm and have to adopt the principle of “first originator” which would help to trace circulator of child pornography on social media.
HIGHLIGHTS OF NEW IT RULES:-
The Union Law Minister of India- Mr. Ravi Shankar Prasad on 25th Feb 2021 in a press conference told that all the social media platforms are welcome to do business in India if they are ready to comply with all the rules and regulations which will be issued from time to time.
The new IT rules are divided into three parts:-
- Part first contains the basic definitions and terms of new intermediaries’ rules.
- Part two focused on the due diligence which should be adopted by all intermediaries.
- Part three focused on the code of ethics and procedure for the OTT platform and digital media.
The Rules are as follows:-
- TWO CATEGORIES OF SOCIAL MEDIA INTERMEDIARIES:-
The government has divided the intermediaries into two parts on the no. of users.
- Significant Social Media Intermediary- any intermediary which has more than 50lakh users will be considered as a significant social media intermediary. Section2 (v) of the new IT rules defined the term ‘significant social media intermediary’.
- Social Media Intermediary- any intermediary which enables the online connection interaction between two or more individuals will be considered as social media intermediary. Section2 (w) contains the definition of ‘social media intermediary’.
- [PART II- DUE DILIGENCE BY INTERMEDIARIES AND GRIEVANCE REDRESSAL MECHANISM]
- RETAINING OF INFORMATION:-
Section 2(h) grants power to all the intermediaries to collect information from the user during the registration process and they have the right to retain it for at least 180 days, even after the cancellation of registration.
- GRIEVANCE REDRESSAL MECHANISM OF INTERMEDIARIES:-
Section3 (2) (a) intermediaries have to publish the name, contact details of the appointed grievance officer, and the procedure by which a victim can complain. The grievance officer has to acknowledge the complaint within 24 hours of complaint and have to dispose of it within 15 days of complaint made.
- ADDITIONAL DUE DILIGENCE TO BE OBSERVED:-
According to section 4(a), all the intermediaries has a time of 3months to appoint a Chief Compliance Officer, who must be a citizen of India and he will look after the implementation of all rules and will be liable for any proceeding where the intermediary has not shown any due diligence in holding the third party information, and data.
As per section 4 (b), a Nodal Contact person should be appointed who should also be a citizen of India and he will work 24×7 in coordination with law enforcement agencies.
Section 4(c) says that a Grievance Officer should be appointed and its power and duties have already been defined under section 3(2).
They all have to publish a report containing no. of complaints reported and what all action has been taken by them.
- PRINCIPLE OF THE FIRST ORIGINATOR:-
As per section 4(2), all the social media intermediaries like Whatsapp and Signal have to enable the identification of the first originator, which means by whom any content or message was first forwarded. It may be done by Judicial order for prevention, investigation, to maintain sovereignty and integrity of the nation, content related to rape, sexual abuse, harm security of the state, to maintain friendly relations with the foreign states, and to maintain public order. Any person found transmitting any content or data which indirectly or directly violates any point mentioned above will be punished with imprisonment for a period not less than 5 years.
- TECHNOLOGY ADVANCEMENT:-
According to section 4 (4), intermediaries are guided to use advanced technologies that will help to proactively trace any content or data which is obscene and unpleasant.
- NOTIFICATION TO OTHER INTERMEDIARIES:-
The government has the power to restrict any social media intermediary to function if they didn’t want to comply with the guidelines mentioned in section 4.
- FAILURE OF RIGHT TO EXEMPT:-
If the intermediaries failed to perform their diligence and duty on their part, they can’t claim the right of exemption from liability as mentioned under sub-section (1) of section 79 of the IT Act 2000 and shall be liable for punishment under penal provisions and provisions of this Act.
- [ PART-III (CODE OF ETHICS AND PROCEDURE AND SAFEGUARDS IN RELATION TO DIGITAL MEDIA)]
- According to section 8, this part is only applied to the two categories and the Ministry of Broadcasting will administer the applicability of all the rules and guidelines.
The two categories are:-
- publisher of news and current affairs and
- publisher of online curated content
- GRIEVANCE REDRESSAL MECHANISM FOR APPLICABILITY OF CODE OF ETHICS:-
As per Section 9 (3), the three-level grievance redressal mechanism should be constituted by the publisher.
- LEVEL I– Self-regulation by the publishers:-
A publisher has to appoint a Grievance Redressal Mechanism Officer, who should be a citizen of India, and he will be responsible for the redressal of grievance received by him. He has to solve the issue within 15 days only.
- LEVEL II– Self-regulation by the self-regulating bodies of the publishers;
There can be more than one self-regulatory body of publisher, which will be headed by a retired judge of the Supreme Court, a High Court, or independent eminent person and the composition should not exceed the limit of 6 members.
The body has to register under the Ministry of Information and Broadcasting, which will look after the adherence of the Code of Ethics and dispose of any grievance received, within 15days.
- LEVEL III – Oversight mechanism by the Central Government.
The Ministry of Information and Broadcasting for proper adherence of the code of ethics have to develop an oversight mechanism and perform some such duties such as; publish Codes of Practices for self-regulating bodies, establish an Inter-Department Committee which will consist of representatives from various Ministries of Government and they will hear the grievances of the public.
The Authorised Officer under section 16 of this Act has the power to block or remove any irrelevant information, in the case of emergency.
- RULES FOR OTT/DIGITAL CONTENT
A. GENERAL PRINCIPLE:-
A publisher is not allowed to publish any content which is prohibited under law and the Government can even remove the content if they find it against the sovereignty, threaten the security of the nation, incite violence, detriment foreign relationship, and disturb public order.
B. CONTENT CLASSIFICATION:-
All the publishers have to classify their content into five age based categories:-
- “U” rating”: – The content with “U” rating is suitable for all age group people whether adult or children.
- “U/A 7+:- The content with “U/A 7+” rating is suitable for the person age between 7 years and above.
- U/A 13+:- The content with “U/A 13+” rating is suitable for the person age between 13 years and above
- U/A 16+:- The content with “U/A 16+” rating is suitable for the person age between 16 years and above.
- “A”:- The content with an “A” rating is strictly restricted to adults only.
The publisher has to display a rating specific to each programme or content, with the descriptor informing the nature of the content.
C. PARENTAL LOCK:-
A publisher uploading content with “U/A 13+” has to ensure the mechanism of “parental lock”.
D. AGE VERIFICATION:-
A publisher uploading content with an “A” rating shall implement the mechanism of age verification for viewership of that programme.
E. ACCESSIBILITY OF CONTENT FOR PERSON WITH DISABILITIES:-
Every publisher shall make reasonable efforts to improve the accessibility of content for a person with disabilities.
The government by implementing these new IT Rules tried to check on the circulation of fake news, cybercrime, abuse, rape, and sexual imageries.
Government increases the duty and work of intermediaries and they will be primarily liable if they didn’t take due diligence on their part.
The concept of classification of content based on age is surely a good step because it will help the consumer to choose what all content is good for them.
Though these rules are getting highly criticized by many experts. The principle of the first originator will help to catch the culprit but it will lead to the dissolution of the end-to-end encryption algorithm and will be the biggest threat to one’s privacy.
All the news and media platforms have to take due care in posting any content and the government also has a right to remove it if they find going against their rules. This will not take away the right to expression but it will also have a hit on our democratic structure.
- Drishtiias, New IT Rules 2021, (Feb26,2021), https://www.drishtiias.com/daily-updates/daily-news-analysis/objections-to-new-it-rules
- Re: Prajawala Case, (2018) S.C.C. 2111(India)
- The Information Technology Act, 2000, No. 21, Act of Parliament, 2000 (India).
- Vijay Val Dalmia, India: Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (March 04, 2021), https://www.mondaq.com/india/social-media/1042586/information-technology-guidelines-for-intermediaries-and-digital-media-ethics-code-rules-2021#:~:text=The%20Information%20Technology%20(Guidelines%20for,Technology%20Act%2C%20with%20thorough%20coordination
- Zee Media Bureau, Social media welcome to do business in India, OTT content will be strictly monitored: Govt, ZEE, (Feb04,2021) https://zeenews.india.com/india/social-media-welcome-to-do-business-in-india-ott-content-will-be-strictly-monitored-govt-2344275.html