Navigating New Digital Frontiers: The IT Rules 2021 and Their Impact on Intermediaries

20th August, 2024 - 12:19 pm Categories: IT Act Media & Entertainment Law 0 Comments

INTRODUCTION

On 25th February 2021, the Ministry of Information and Broadcasting (MIB), out of the blue, notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (hereinafter referred to as ‘the rules’ or ‘IT Rules 2021’) under nearly two-decades-old pre-existing IT Act. The Rules will supersede the 2011 guidelines[i] for the internet intermediaries.[ii] The rules were notified at the time when giant tech companies are being served notices or sued by the government for disseminating fake news, rumours, religious disharmony, promoting hate speech, and inciting violence.

The rules have been brought about in three parts. Part I basically deals with definitions. Part II deals with the regulation of intermediaries. The rules divide intermediaries into two parts viz. “social media intermediary” and “significant social media intermediary.” As per the rules, the “social media intermediary” means an intermediary, “which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services,” while significant social media intermediary means one that has the number of users greater than the threshold notified by the Indian Government.[iii] On the very same date, the Central Government, side by side issued a notification, whereby it defined a “significant social media intermediary.” It stated that any social media intermediary that has fifty lakh registered users or more will be considered as a significant social media intermediary.[iv]

[Image Sources: Shutterstock]

Part III of the rules primarily deals with “the publishers of news and current affairs content” and “publishers of Online curated content.” The definition of “online curated content” in the rules is vast enough that OTT platforms fall under the same category. Consequently, Part III of the rules becomes a linchpin for regulating the OTT platforms. The said part is formulated with the prime intention to ensure adherence to the code of ethics by the OTT platforms that are laid down in the Appendix of the rules.

The rules provide for due diligence to be paid by Intermediaries in form of ten pointers while publishing any information.[v] It also states that the intermediary should inform its users that publishing any content in contravention to the rules mentioned on that intermediary would lead to termination of the access and usage rights from that user.[vi]  The rules also require for the intermediaries to appoint a Grievance Redressal Officer (GRO) to acknowledge the complaints filed within twenty-four hours and dispose them off within fifteen days. The rules also state that the GRO shall receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.[vii]

For intermediaries, the rules also maintain that the significant social media intermediaries shall also deploy “adequate technology-backed mechanisms including automated tools or other mechanisms to proactively identify information that depicts or simulates in any form of rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary.”[viii] The rules also provide for identification of first originator of the information as may be required by a judicial order passed by a court of competent jurisdiction.[ix]

The rules for intermediaries also mention that if any intermediary platform fails to duly abide by these rules, then the intermediary status under Section 79 of the IT Act[x] would be snatched from that tech giant and it shall be liable for any punishment under any law for time being in force in India, including IT Act and IPC.[xi] Section 79 of the IT Act provides a ‘safe harbour’ to the intermediaries, which states that any unlawful information or content published on any intermediary shall make such intermediaries liable and no legal action shall be taken against them.

CODE OF ETHICS

These rules provide for classifying the content based on Themes and messages, Violence, Nudity, Sex, Language, Drug and substance abuse, and Horror. The definitions of all these classifications mentioned are subjective in nature that would be determined by the MIB time-to-time.[xii] The code further maintains – “the platform adhering to the Constitutional provisions will take due caution while featuring any content related to (a) Content that affects the sovereignty and integrity of India; (b) Content that threatens, endangers or jeopardizes the security of the State; (c) Content which is detrimental to India’s friendly relations with foreign countries; (d) India’s multi-racial and multi-religious context; (e) Activities, beliefs, practices, or views of any racial or religious group in India.”[xiii]

Furthermore, the rule categorizes content into five different categories based on violence, nudity, sex, etc. as:

“…

• “U” would be suitable for everyone irrespective of their age.
• “U/A 7+” would be suitable for those who are above seven years and can be watched by children below seven years with parental guidelines.
• “U/A 13+” would be suitable for those who are above 13 years and can be watched by children below 13 years with parental guidelines.
• “U/A 16+” would be suitable for those who are above 16 years and can be watched by children below 16 years with parental guidelines.
• “A” that would be restricted to adults only.”[xiv]

The rules not only categorized the content but also taken its effective implementation into account and suggested platforms – “access control mechanisms, including parental locks, should be made available for content that classify as U/A 13+ or higher.” The rules also suggest applying all efforts to restrict a child from accessing content classified as “A” and implement a reliable age verification mechanism for the viewers of such content.

CONCLUSION

The much-touted Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 remain a major new approach of controlling digital materialities and intermediaries in the country. These rules have been implemented as technology giants are under pressure, although they are meant to address the problem of fake news, hate speech, and users’ protection in the internet space, they set strict requirements for intermediaries and digital media. These distinctions such as social media intermediaries and significant social media intermediaries break down the regulation by user base so that platforms with higher traffic are subject to more scrutiny.

 Furthermore, there is the threat of protection under Section 79 of the IT Act being withdrawn if the regulations are infringed, no doubt underlining these regulations further. In essence, the rules contribute to ‘making’ the digital environment safer thus coming with the following concerns relating to; Practicality of the rules/The Concept of the ‘Rules’, Perhaps the most evident concern here is the question of the practicality of the rules in the overall concept of the ‘Rules’, The question regarding the execution of the rules, The rules pose issues with regard to implementation and enforcement particularly under two aspects, freedom of expression and privacy. Thus, it can be concluded that as long as the dynamics of the digital environment remains active, a constant discourse and changes in these regulations would be vital to ensure that they provide adequate solutions to future technological issues while promoting the healthy and safe virtual community.

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[i] The Information Technology (Intermediaries guidelines) Rules, 2011, Ministry of Electronics and Information Technology, Government of India.

[ii] N. Raja Sujith, Shreya Ellentala and Rahul Datta, New Rules For Digital Media Intermediaries: How Far Is Too Far? (March 12, 2021, 06:51 PM), Live Law, https://www.livelaw.in/law-firms/articles/new-rules-for-digital-media-intermediaries-171096.

[iii] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2(v), 2(w).

[iv] Platforms with over 50 lakh users to be ‘significant social media intermediaries’ (February 28, 2017, 07:12:09 AM), The Indian Express, https://indianexpress.com/article/technology/tech-news-technology/platforms-with-over-50-lakh-users-to-be-significant-social-media-intermediaries-7207876/.

[v] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(b).

[vi] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(c).

[vii] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3(2)(a).

[viii] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4(4).

[ix] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4(2).

[x] Information Technology Act, 2000, § 79.

[xi] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 7.

[xii] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Appendix II (B)(ii).

[xiii] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Appendix II (A)(b), Appendix II (A)(c).

[xiv] Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule Appendix (B)(i).