12 March 2021
The Ministry of Electronics and Information Technology (“MeitY”), on 25 February 2021, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines, 2021”) which supersede the Information Technology (Intermediary Guidelines) Rules, 2011 (“Intermediary Guidelines, 2011”) and bring under their scope numerous online entities by introducing broad new terms and definitions.
The Intermediary Guidelines, 2021 divides intermediaries based on their functions or the services they offer and then lays down their duties and obligations.
These Rules seek to address all these issues and to regulate the following categories of intermediaries and digital media entities:
While this may seem like a step forward, it can also be perceived as a practice of regulating a critical sphere, not just of our lives but also the nation’s economy, only by the powers of the executive. Consequently, the legislatures’ contribution is reduced to almost negligible, which may prove harmful.
The rules have been further divided into two parts; Due diligence obligations applicable to intermediaries, and Code of ethics and related safeguards and procedures applicable to entities in the digital media space.
While, prima facie, this step shall ensure that only information that has been verified to be unlawful shall be subject to not being hosted, stored or published, or removed or disabled accessed to, it does not keep any person from having such information on display on an intermediary’s platform till the time a court or an appropriate government acts upon it.
An exception is made to this rule, wherein, an intermediary, within twenty-four (24) hours from the receipt of a complaint made by an individual (or on behalf of such individual), with regard to any content which, prima facie, depicts nudity, sexual conduct or impersonation of such individual, must take such content down.
If a Significant Social Media Intermediary provides services primarily in the nature of messaging, it must enable the identification of the first originator of the information available on such platform, as may be required by a judicial order passed by a competent court or an order passed under Section 69 of the IT Act and applicable rules, by a competent authority.
To curb the abuse of this Rule, it has been provided that such orders shall only be passed for prevention, detection, investigation, prosecution or punishment of an offence and only if other means, not as intrusive, cannot be employed. It is further provided that the contents of any electronic message or other such information relating to the first originator needn’t be disclosed. Thus, an attempt has been made to balance public or national interests and the protection of individual privacy.
In addition to the above, an intermediary in relation to news and current affairs content shall publish on its Platform, at an appropriate place, a clear and concise statement informing publishers therein, to furnish details of their user accounts on the services of such intermediary to MeitY. Such publishers must be provided a demonstrable and visible mark of verification.
An intermediary is required to prominently publish the name and contact details of the Grievance Officer along with the redressal mechanism, including for receipt of complaints, on the Platform. The Grievance Officer shall
An intermediary must, within 24 hours of receipt of a complaint made individual (or on behalf of such individual), with regard to any content which, prima facie, depicts nudity, sexual conduct or impersonation of such individual, must take all reasonable and practical measures to remove or disable access to such content.
A three-tier code of ethics (“Code”) has been implemented which is largely self-regulatory in nature. This includes self-regulation by publishers of not only online curated content but also of news and current affairs content, operating in India and conducting the systematic business activity of making their content available here.
Level I provides for a self-regulation by the publishers.
Such classification or rating must be displayed prominently and viewer discretion, if required, must be advised. Display ratings of the Online Curated Content such as 'U', or 'U/A 7+,' or 'U/A 13+', or 'U/A 16+', or 'A' prominently to its users in a manner that will ensure that the users are aware of the ratings before accessing such content.
Additionally, a publisher shall not transmit or publish any content which is prohibited by law or by a competent court and must also take into consideration national interests and India’s diversity while exercising due caution and discretion in featuring activities, beliefs, practices or views of any racial or religious group.
Level II provides for the establishment of one or more independent and self-regulating bodies of publishers or their associations.
Such a body shall be headed by a retired judge of the Supreme Court or High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field and up to six other members who are experts in one or more of the aforementioned fields. The body must register itself with MeitY within thirty days of the date of notification of these rules or, if constituted after this period, within 30 days of its constitution.
The regulatory body shall:
The body can also issue guidance or advisories to publishers while disposing a grievance or an appeal. It can also refer a matter to MeitY if it believes it necessary. If the body concludes there is no violation of the Code, such a decision must be conveyed both to the complainant and the publisher. Finally, in cases of non-compliance of a guideline or advisory, issued by the body, by a publisher, the matter may be referred to the Oversight Mechanism within 15 days of the period in which such compliance was required by such publisher.
Level III provides for an oversight mechanism which shall fall under the purview of MeitY, who shall, in turn, coordinate and facilitate adherence, by publishers, to the Code.
MeitY is required to do the following, as part of the oversight mechanism:
The Intermediary Guidelines, 2021 seem to be a necessary step allowing the law to catch up with the constantly evolving and disruptive technology. With these Rules encouraging self-censorship, it is evident that the Executive recognizes how important it is to allow intermediaries freedom in their operation. However, it also uploads the need to protect individuals using such intermediary platforms and urges intermediaries to work in a conscious and ethical manner. The increase in compliance requirements is likely to result in higher volumes of complaints and access requests by government agencies, making it difficult to address the complaints in a short time frame as provided under the rules that is to say it may not be practical to take down content within these timelines. Provisions such as permitting the tracing of originator of the information drastically undermines the privacy of individuals. The local presence requirement as seeked under the new guidelines may also lead to increased operational costs.
Despite the well-intended attempt to regulate the digital space, it is important that the government and bodies responsible for enforcing the Intermediary Guidelines, 2021 strike a balance between upholding the protections which individuals are entitled under the Indian Constitution or under any other law and to allow intermediaries to operate in India with limited restrictions, thereby, curbing any abuse while also helping the country’s digital economy to flourish.
The rules issued by MeitY, and the IT Act also aim at regulating digital media entities (that are currently being governed by the Ministry of Information and Broadcasting).
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