This Article is written by Ashima Gupta student of VIPS, Delhi.
The Government of India framed the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 to transform the digital information ecology in India.
The new Information Technology Rules have been passed under the Section 69A(2), Section 79(2)(c) and Section 87 of the Information Technology Act, 2000.The objective of these rules is to regulate the digital news media, Over-The-Top (OTT) content providers and Social Media Platforms. The rules were announced jointly by the Minister for Information and Broadcasting and the Minister for Information Technology.
BACKGROUND OF IT RULES
In 2018, the Supreme Court had stated that the Government of India may frame necessary guidelines to eradicate rape and gangrape videos, imageries and sites and child pornography in content hosting platforms and other applications.
In 2020, a report on the issue of social media pornography and how it effects children and society as a whole was submitted by an Ad-hoc committee of the Rajya Sabha. The report recommended that the originator of such content should be traced.
OTT platforms were brought under the purview of the Information and Broadcasting Ministry in 2020.
It was clear that new rules were needed to regulate the digital and social media platforms and this led to the formulation of the new IT rules.
Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 aims to regulate digital news media, social media and Over-The-Top (OTT) content providers. Various Guidelines have been prescribed under the rules.
GUIDELINES FOR SOCIAL MEDIA PLATFORMS
- The new rules prohibit social media companies from publishing or hosting any unlawful information. These are information which are in relation to the interest of the sovereignty and integrity of India, friendly relations with foreign countries, public order etc.
- As per the new rules social media intermediaries are classified into two categories:
- Social media intermediaries
- Significant social media intermediaries
- Under the new rules the government can take down any such information which is prohibited under the rules within 24 hours. The user has to be given a notice before content is taken down.
- A monthly compliance report has to be published by the social media companies under the IT Rules 2021.
- A dispute resolution mechanism for content removal has to be established.
- For the purpose of strengthening traceability the Government can direct messaging platforms to tie the identity of the user with the message transmitted by him/her.
- The new IT rules has expanded the purview of the IT Act, 2000 and it’s scope has been expanded to bring the digital news media under its regulatory ambit without any legislative action.
- The social media intermediaries are required to appoint a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer and all these officers should be Indian residents.
- They are also required to publish a monthly compliance report detailing the complaints received.
- An intermediary on being notified by the appropriate govt. or its agencies through authorized officers or upon receiving knowledge in the form of an order by a court should not publish or host any information which is prohibited under any law in relation to the interest of the integrity and sovereignty of India, public order etc.
Under the new rules the OTT platforms are called ‘publishers of online curated content’.
- Under the new rules a Code of Ethics has been prescribed for the OTT platforms and digital media entities.
- The content has to be classified in five major categories which are: U (which stands for universal), 7+, 13+, 16+, and A (Adult).
- Parental lock systems have to be provided for all content which is classified U/A 13+ or higher and an age verification mechanism has to be in place for content classified as ‘Adult’.
- The norms of journalistic conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act has to be followed by the publishers of news on digital media.
- A grievance redressal mechanism has to be established under the new rules. The redressal mechanism has been divided into three levels:
Level-I deals with Self-regulation by the publishers.
Level-II is the Self-regulating body: A retired judge of the Supreme Court or a High Court or independent eminent person can be the head of this body.
Level-III: Oversight mechanism: The Ministry of Information & Broadcasting has to establish an inter-departmental committee and it will formulate an oversight mechanism for hearing grievances. This body will also have blocking and censorship powers.
THE NEW IT RULES AFFECT THE FREEDOM OF SPEECH AND EXPRESSION
The New IT Rules would have a huge impact on the freedom of speech and expression and privacy. Under the new rules the information has to be taken down within 24 hours and so it prevents the intermediary from taking fair recourse in case it ever disagrees with the order of the Government due to a strict timeline. A lot of discretionary power has been provided to the Government.
Earlier the intermediaries did not have access to the contents of the messages but now the mandatory requirement of traceability will break this immunity and thus weaken the security of the privacy of these conversations. Till now social media platforms had the immunity that users received from end-to-end encryption which is being threatened by the new rules. The threat is not only one of privacy but it is also of invasion and deprivation from a safe space. The messaging platforms like WhatsApp do not store source data currently but the newly issued rules makes it mandatory that at the request of any law enforcement agencies, the platforms must trace ‘first originator’ of any message. The traceability gets complicated in situations where the message originates outside India. This will weaken the overall security as now these platforms must store sensitive information or break end-to-end encryption protocol.
The oversight mechanism which is proposed under the new rules doesn’t have any legislative backing which is generally given to other regulators. The new IT rules affects free speech as it fixes the Government as the ultimate adjudicator of objectionable speech online. Thus, these rules will increase surveillance, promote automated filtering, it will effect end to end encryption and substantially prompt a fragmentation of the Internet that would harm users while failing to empower Indians.
Thus, a balance has to be created. The content should be regulated without compromising the privacy and freedom of speech and expression. Social media is supposed to be a safe space where people can express their opinion, exchange ideas and communicate freely but the new rules threaten this freedom by giving a lot of discretionary power to the Government. These challenges and issues need to be addressed going forward. The government should have a mindset of agility and flexibility to adequately support the rules. The Government should work with the digital and social media platforms to fulfil its responsibility properly.
- Concerns related to it rules by Diksha Sharma; https://www.successmantra.in/blog/view/concerns-related-to-it-rules-2021
- India’s new digital media rules will harm open Internet by John Xavier, The Hindu https://www.thehindu.com/sci-tech/technology/indias-new-digital-media-rules-will-harm-open-internet/article33987347.ece
- Information Technology Act, 2000
- The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021