An overview of the information technology rules 2021

The advent of digital media has brought with it a fair share of concerns. Pertinently, the internet intermediaries have so far largely remained unregulated and more so, have had a free pass in respect of contents uploaded on their portals. In view of the widescale misuse of the internet on the portals of these intermediaries, concerns have been raised time and again including the Supreme Court of India, necessitating issuance of a framework to regulate the content on the intermediaries. This has prompted Government of India to frame guidelines which would put some onus on these internet intermediaries to eliminate or at the very least minimize its misuse by the users.

In order to meet the need of the hour, the Government of India has enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘Intermediary Guidelines’). The Intermediary Guidelines have been enacted in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011.

KEY FEATUES OF THE INTERMEDIARY GUIDELINES, 2021

The Intermediary Guidelines are primarily concerned with and regulate the Social Media Intermediaries and the Online Curated Content Platforms including publishers of news and current affairs.

Under the Intermediary Guidelines, the Social Media Intermediaries have been further classified into Significant Social Media Intermediaries, based on the number of users.

The Intermediary Guidelines are significant in terms of setting out due diligence to be observed by all intermediaries in the usual course of their business. One significant change the Intermediary Guidelines have introduced is that the safe harbor provisions under Section 79 of the Information Technology Act, 2001 will not be available to them in case of non-compliance of the Guidelines.

The Intermediary Guidelines now mandate that an intermediary should publish on its website and/or its application, its privacy policy, rules and regulations and user agreements for access and further, repercussions in the event of violation of their privacy policy. Pertinently, the Intermediary Guidelines provide for a timeline under which, actions are required to be taken by the intermediary in case of any violation and aduty cast is upon the Intermediary to assist the law enforcement agency in case of non-compliance. As per the Intermediary Guidelines, the material published by its users must set out the user’s responsibility not to “host, display, upload, modify, publish, transmit, store, update or share” any form of information which:

1. Belongs to another person;
2. Is defamatory, obscene, pornographic, pedophilic, invasive of one’s privacy, libelous, or inconsistent to the laws of the land;
3. Is dangerous for minors;
4. Results in the infringement of any intellectual property right;
5. Is deceiving or misleading regarding the origin of the message;
6. Impersonates another person;
7. Hampers the integrity, defense, security or sovereignty of the country, friendly relations with foreign states, public order or results in the incitement of any cognizable offence;
8. Contains any software virus or any program designed to corrupt or interrupt the functionality of any computer resource;
9. Or is patently false and untrue, regardless of its form is published or in order to mislead or harass a person.

In case of non-compliance by the user, the Intermediary is also required to inform the user that such non-compliance may result in termination of access of the user to the portal.

SIGNIFICANT SOCIAL MEDIA INTERMEDIARIES

As stated aforesaid, the Intermediary Guidelines further classify the social media intermediaries into significant social media intermediaries. This further classification has been made to ensure stricter compliances by the significant social media intermediaries, who have a larger user base. In addition to the compliance prescribed for the social media intermediaries, the significant social media intermediaries have to comply with the following:

1. Appointment of a Chief Compliance Officer, assuming the responsibility to ensure compliance and oversee the functions of significant intermediaries;

2. Appointment of a nodal contact person, who would act as a link between law enforcement agencies;

3. Appointment of a Resident Grievance Officer, whose responsibilities would be equivalent to that of the Officer appointed under Rule 4(1)(n);
4. Publishing the compliance report on a periodical basis of six months, containing the details and contents of complaints handled and information removed or interrupted by intermediaries in pursuit of their monitoring activities.

VOLUNTARY USER VERIFICATION

Another pertinent provision of the Intermediary Guidelines is the Voluntary User Verification. It provides an opportunity to users to verify their accounts voluntarily in terms of an appropriate mechanism and getting a mark of verification on their profiles.

FIRST ORIGINATOR OF INFORMATION

One of the most pertinent aspect of the Intermediary Guidelines is the identification of the ‘First Originator of Information’. Under this provision, a significant social media intermediary is required to to identify the first originator of the information on a computer resource. However, for seeking such information, an order is to be issued under Section 69 of Information Technology Act or a judicial order is required. The provision has its own share of issues and is at the risk of being misused.

Many intermediaries, particularly WhatsApp, claim that the information shared by its users is end-to-end encrypted. This provision will undermine the same and impinge on the security and privacy of communications since, in order to comply with this provision, the significant social media intermediaries will have to break end-to-end encryption in order to access the contents of a message. This will necessary caused concerns of privacy amongst the users. Pertinently, WhatsApp has recently filed a petition before the Delhi High Court challenging Rule 4(2) of the Intermediary Guidelines alleging that the same would require it to break the end‑to‑end encryption and the privacy principles underlying it. The same would infringe upon the users’ fundamental rights to privacy and freedom of speech. The matter is yet to be listed before the Court.

In any event, it will be a challenge to prove in court as to who is the first originator of information.

PUBLISHERS OF NEWS AND CURRENT AFFAIRS

The Intermediary Guidelines provide that the publishers of news in the Digital Media would be required to observe the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act, 1995 thereby providing a level playing field between the offline (Print, TV) and digital media. These Digital Media Publishers are required to prescribe to the code of ethics stipulated under the Intermediary Guidelines.

OTT PLATFORMS

The Intermediary Guidelines also formulate provisions for the Online Curated Content Platforms. Such OTT Platforms are required to classify the content on its platforms into five age groups. The age groups would be as U (Universal), U/A 7+, U/A 13+, U/A 16+ and A (Adult).

The OTT Platforms are further required to implement an age verification mechanism for access to adult content and access control measures such as parental controls. Significantly, these platforms are required to improve accessibility of content for disabled persons also.

In case of digital news publishers and OTT), a three-tier grievance redressal mechanism has been put in place for dealing with complaints regarding content: (i) self-regulation by the publishers, (ii) self-regulation by the self-regulating bodies of the publishers, and (iii) oversight mechanism by the Central Government.  The publisher will be required to appoint a grievance redressal officer based in India and address complaints within 15 days.  As part of the oversight mechanism, the Ministry of Information and Broadcasting will also establish an Inter-Departmental Committee to hear grievances not addressed by self-regulatory bodies and also oversee adherence to the code of ethics.

CONCLUSION

Although the Intermediary Guidelines appear to create a mechanism for resolution of complaints, it is its implementation which will reveal its real impact by maintaining a fine balance between protecting its citizens from harm vis-à-vis ensuring the right to free speech.

The measures prescribed under the Intermediary Rules ought to be proportional to the fundamental rights of privacy and freedom of speech and expression of the users.