IT Rules 2021 (Intermediary Guidelines & Digital Media Ethics Code) – Everything You Need To Know

Understanding The IT Rules 2021 (Social Media Intermediary Guidelines)

India is the world’s largest open internet society with over 680 million active internet users and the consumption of social networking apps in India has grown significantly because of a 21% surge in its users between 2020 and 2021. With the mounting relevance of Information Technology and the internet, it is natural that the increased usage of digital platforms should attract close governmental surveillance as well.

It thus naturally comes as no surprise to anyone that the Government of India, in consultation with the Ministry of Electronics and Information Technology (hereinafter, referred to as ‘Ministry’), recently notified the Information Technology (Social Media Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter, referred to as “IT Rules, 2021’) on 25th February 2021 to regulate internet intermediaries and digital media. These Rules are pursuant to Section 87 of the Information Technology Act, 2000 ((hereinafter, referred to as ‘IT Act[1]”).

Notably, the definition of” intermediary” was extended to include the following entities:

a.        Social media intermediaries (E.g., Twitter, Instagram, Facebook)
b.        Publishers of news and current affairs (E.g., The Hindu, The Indian Express)
c.        Publishers of online curated content or over-the-top platforms (E.g., Netflix, Amazon Prime).

Comparing Regulations On Social Media & OTT Platforms Around The World

India is not alone in seeking to enforce government regulations on social media and OTT platforms. Other countries such as Singapore, Australia, the US, UK, and Europe have similar regulations which aim to ensure accountability and uniformity[2]. For instance, the Infocomm Media Development Authority (IMDA) in Singapore regulates content on intermediaries. It also mandates a compulsory license, parental lock, age verification, and classification of content with an exhaustive list of unlawful content. Additionally, the rules also require the intermediaries to balance their viewpoints expressed in the news[3].

The Australian Communications and Media Authority (ACMA) passed a new bill known as the ‘Sharing of Abhorrent Violent Material Bill’ which aims to hold social media intermediaries accountable for any form of media that depicts murder, terrorism, rape, kidnapping, etc. within or outside Australia. Platforms like YouTube and Facebook risk being subjected to hefty penalties and/or employee imprisonment in case of non-compliance with these rules[4].

A third example to consider is the Online Safety Bill introduced by the UK government which requires online content service providers to take necessary steps to minimize illegal content, conduct children’s risk assessment and have appropriate complaint redressal mechanisms[5].

Due Diligence To Be Observed By All Intermediaries According To IT Rules 2021

1. Annual notification to users: The intermediaries are required to inform their users at least once a year regarding any changes in the rules or privacy policies. The intermediaries should terminate the user’s license if they do not comply with the changes in the rules or privacy policy.
2. Procedure for the removal of content: According to the IT Rules 2021, the intermediaries should remove unlawful content within 36 hours of the receipt of such content. If the content is prima facie depicting nudity, sexual acts, etc, then such content should be removed within 24 hours.
3. Set up of a grievance redressal mechanism: The IT Rules 2021 provide for a three-tier grievance redressal mechanism to keep a check on online content.
   a. Level 1 – The publisher of the content should assign a designated officer to accept and resolve complaints within 15 days.
   b. Level 2 – Each publisher should also set up a self-regulatory body that is registered with the Ministry of Information and Broadcasting to hear appeals against the decisions taken by Level 1.
   c. Level 3 – Establishment of the Oversight Mechanism which is headed by an inter-departmental committee to facilitate adherence with the prescribed Code of Ethics.
4. Retainment of records: The intermediaries are required to collect and maintain user registration resources for 180 days after any cancellation and withdrawal of any registration.
5. Assisting government agencies: The intermediaries should, within 72 hours of the receipt of an order, provide information under its control or possession to any specified authorized government agency for investigations, cybersecurity activities, etc.

Due Diligence To Be Observed By Significant Social Media Intermediary Guidelines According To IT Rules 2021

1. Appointing Officers: Each Significant Social Media Intermediary Guidelines(SSMI) should appoint a Chief Compliance Officer (CCO), Grievance Redressal Officer (GRO), and a nodal person of contact to ensure compliance with the IT Rules, 2021 and to address any grievances.
2. Identification of First Originator: SSMI providing services like instant messaging such as WhatsApp should enable the identification of the first originator of information – as may be required by a judicial order passed by a competent court.
3. Verification of Users: SSMIs should voluntarily verify the accounts of users who register for their services from India using appropriate mechanisms and provide a verification mark for all the verified users which should be visible to all.
4. Monthly Compliance Report: All SSMIs should publish a monthly compliance report recording details about the complaints registered, actions taken, accounts cancelled, etc.
5. Notification on the removal of prohibited content: On removal or disabling access to any unlawful content, SSMIs should notify the users who created, uploaded, shared, or modified such information. They should also provide a reasonable opportunity to such users to request a reinstatement of access to such information.

Due Diligence To Be Observed By Intermediaries Concerning News And Current Affairs Content According To IT Rules 2021

Intermediaries offering news and current affairs content should publish, on their website or mobile application, a clear and concise statement informing publishers of news and current affairs content that, in addition to the common terms of service for all users, such publishers must furnish all details of their user accounts to the Ministry if required.  Additionally, the Code of Ethics prescribes that the publishers of news and current affairs content should comply with the norms mentioned in the Press Council Act, 1978 and prohibit publishing or transmitting content that is against the law.

Benefits Of The IT Rules 2021 – Social Media Intermediary Guidelines

1. Uniformity: The booming online media industry certainly calls for a clear and concise regulation to combat unlawful content. In the case of Aparna Purohit v. State of Uttar Pradesh, colloquially known as the ‘Tandav case’, the Apex court emphasized how there is a dire need for rules to regulate the functioning of OTT platforms to ensure that the publishers are creating content keeping in mind the multi-cultural and multi-religious population of India. The IT Rules 2021 are the perfect solution to regulate online content and help in maintaining public order, decency, and morality in the country.
2. Accountability: The IT Rules 2021 aim to have the publishers take accountability for the misuse of social media. Moreover, most social media and OTT platforms operating in India are of foreign origin and this development ensures that such intermediaries will strictly comply with the Constitution of India. The due diligence obligations, such as verification of users and removal of unlawful content, help in establishing accountability.

Loopholes In The IT Rules 2021

1. The three-tier redressal mechanism: The three-tier arrangement prescribed in the IT Rules, 2021 is problematic because the third level, known as the oversight mechanism, enforces the code of ethics based on the recommendations of the inter-ministerial committee – which would constitute members from the Ministry. Furthermore, the rules give the Authorised Officer the power to block, delete or modify the information made available by the publisher on the internet under Rule 13 of the Code of Ethics. The Authorised Officer also possesses the right to block the information in case of an emergency under Rule 16. These provisions give a troubling amount of control and power to the Ministry – which is under grave risk of being misused.
2. Potential misuse of Article 19: It was held in Shreya Singhal v. Union Of India that circulation of information through the internet cannot be restricted or denied and if such a restriction is placed, then that would amount to unreasonable interference with the enjoyment of the right to freedom of speech and expression. As per the IT Rules 2021, an intermediary, upon receiving the direction of a court order or the notification of a government agency, is required to remove the information within 36 hours. Such orders of content removal will take away the right possessed by an intermediary to a fair and reasonable course of action when they are directed by a government body, which seriously affects the use of free speech on the internet. In addition to that, the Code of Ethics mentioned in Part III of the IT Rules 2021 is broadly vague. For example, clarity is absent in the meaning of ‘illegal, objectionable content’, as such, its interpretation is at risk of being conveniently wide and open-ended, which is of concern since that could bring under its ambit even protected speech.
3. Tracking the first originator: Another unaddressed issue is about tracking the first originator of the information. For intermediaries such as WhatsApp, it would be challenging to adhere to such a rule as their messages are data encrypted end-to-end. The removal of end-to-end encryption and its benefits would be a direct infringement upon the user’s fundamental right to privacy. Rule 4(2) of the IT Rules 2021 which deals with tracking of the first originator is ultra-vires the Information Technology Act, 2000 and illegal. It would be extremely difficult to predict which information or message should be subjected to tracing, therefore, intermediaries would be forced to identify the first originator of every message sent through their platform. The landmark case of Puttaswamy v. Union of India, famously known as the Aadhaar Case laid down the foundation of the right to privacy in India. J. Chandrachud stated that privacy is not surrendered entirely when an individual is in the public sphere and there should be data protection regimes in India to protect the personal information of individuals. This landmark judgment also widened the scope of the fundamental rights of individuals by bringing the right to privacy under the ambit of Article 21. Therefore, introducing rules which require the intermediaries to track the first originator would be a violation of the fundamental rights of citizens. In another recent case, where coercive actions were taken against two Telugu channels for airing a statement by an MP who had rebelled against the ruling party in the state, the Supreme Court defined limits of sedition in the context of media freedom. The court emphasized that the government cannot misuse law enforcement to control media houses and accuse just anyone of being seditious. Rules such as the tracking of the first originator would only intensify the problem and muzzle the freedom of digital media.

Conclusion

The Information Technology (social media intermediary guidelines and Digital Media Ethics Code) Rules, 2021 is a great step to ensure accountability and uniformity. However, concerns over its implementation continue to exist. Suits have been filed by intermediaries like WhatsApp challenging the provision on tracking the first originator as it would make users feel insecure about using the platform and make them more vulnerable to scams. Digital technology is such an indispensable part of our lives and it has become increasingly necessary that personal data is protected with encryption.

And so, while the multiple revolutions and reformations in communication technology have made digital media a flagbearer of free speech and expression, the IT Rules 2021 seek to impose unreasonable restrictions on the use of social media which will invariably lead to a broad suppression of dissenting opinions. Digital rights activists and experts have also criticized the IT Rules, 2021, and called for amendments and revision of the IT Rules 2021. To meet the goals the new rules seek to fulfil with balanced sincerity, the provisions must be broken down further with clearer terms and continually updated to keep up with the rapidly changing nature of content on digital platforms.

• [1] Government notifies Information Technology (social media intermediary guidelines and Digital Media Ethics Code) Rules 2021, Ministry of Electronics & IT, Press Information Bureau, Government of India, (February 25, 2021). {https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749}.
• [2] Anonymous, Regulating social media and OTT services: Comparing rules from around the world, The Week (February 25, 2021).
• [3] Vasudha Venugopal, What different countries are doing to regulate content on OTT Platforms, The Economic Times (January 25, 2021).
• [4] Hillary Leung, Australia Has Passed a Sweeping Law to Punish Social Media Companies for Not Policing Violent Content. Here’s What to Know, TIME, (April 5, 2019).
• [5] Burges Salmon LLP, Online Safety Bill: Everything you need to know, Lexology, (May 24, 2021).
• [6] (2021) SCC Online All 179 (India)
• [7] (2013) 12 SCC 73 (India)
• [8] 2017 10 SCC 1

Contributed by – Rajeev Rambhatla, Head-Hyderabad & Aanchal K Golecha, Intern