Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021- Analysis
In April 2018, the Ministry of Information and Broadcasting constituted a 10- member committee to frame and recommend a regulatory framework for online media, news portals, digital broadcasting and entertainment and infotainment (information and entertainment) sites and for media aggregators. The Apex Court in the case of Tehseen S. Poonawalla v Union of India had directed the Union government to take steps to stop dissemination of explosive messages and other material on various social media platforms that can incite mob violence and lynching of any kind. Consequentially, in the 246th session of Rajya Sabha on 26th July, 2018, the Chairman of Rajya Sabha directed immediate attention to the misuse of social media platforms to spread rumours and fake news leading to rising incidents of violence and lynching in the country.
The Minister of Law and Justice, Shri Ravi Shankar Prasad, expressed that the Ministry was seriously considering the enactment of new rules to ensure that all social media platforms comply with the Information Technology Act as well as all other applicable laws to curb the spread of fake news and stop the incitement of violence through hate messages. Thus, on February 25, 2021, the Ministry of Electronics and Information Technology released a notification that sought to replace the Information Technology (Intermediaries Guidelines) Rules, 2011.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ( the “Rules”) seek to govern all the intermediaries as defined under Sec 2(w) of the Information Technology act, 2000. As per the definition, intermediaries “with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-marketplaces and cyber cafes.”
The Rules seek to place accountability upon intermediaries as defined above by mandating them to perform due diligence with respect to certain information published on their platforms. It empowers a competent court and the government to direct any intermediary to take down certain information that is considered ‘prohibitory’. In addition, it places additional responsibility upon Significant Social Media Intermediaries (“SSMIs”) by mandating it to identify the first originator of information if the Court or government requires it to do so. An intermediary is considered to be an SSMI if it has more than 50 lakh registered users in India.
The Rules also provide for a hierarchical grievance redressal mechanism for publishers of online curated content and news and current affairs content.
III. SNAPSHOT THE PROVISIONS
The Rules cover the following aspects- due diligence to be performed by intermediaries, additional due diligence to be complied with by SSMIs, Code of Ethics for Digital Media and grievance redressal mechanism in relation to the Code of Ethics.
In toto, the rules cover intermediaries, SSMIs, publishers of online curated content including OTT platforms and publishers of news and current affairs.
1. Due diligence by Intermediaries
It is mandatory for intermediaries, social media intermediaries and SSMIs to observe due diligence during the course of their operations.
They are supposed to inform their users about the privacy policies and user agreements listing certain prohibited information that cannot be hosted, displayed, uploaded, modified, published, transmitted, stored, updated or shared.
The intermediary, upon receipt of information from a competent court, government or its agency about any ‘prohibited information’ on its platform is mandated by the Rules to remove or disable the same within 36 hours.
All the intermediaries shall appoint a Grievance Officer and publish details about him/her on their website, who can be approached for violation of any of the rules or other related matters. The Grievance Officer shall be responsible to acknowledge a grievance if filed and ensure its disposal within a period of fifteen days from its receipt. If the complaint is about any material that displays nudity in any manner, the intermediary is obligated to remove such content within 24 hours from the receipt of the complaint.
2. Additional Due Diligence for SSMIs
In addition to complying with the aforesaid, SSMIs are expected to comply with additional conditions.
Apart from a ‘Grievance Officer’, a Chief Compliance Officer has to be appointed. Such an officer has to be a senior employee or Key Managerial Personnel of the SSMI. The Chief Compliance Officer so appointed would be liable in case the SSMI fails to comply with the rules. He/she will be considered liable in any proceedings for any third party information if the SSMI fails to adhere to the rules.
The SSMI may be required, by way of a judicial order by a competent Court or an order passed by the competent authority under Sec 69 of the IT Act to identify the ‘first originator’ for certain electronic information which could have a bearing on the prosecution, prevention, investigation or punishment of an offence related to the sovereignty and integrity of India, its relation with foreign states, rape, sexually explicit material or child sexual abuse etc. By virtue of the order so passed, the SSMI is obligated only to identify the ‘first originator’ of the electronic information as directed. It is not obligated to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users. Even if the first originator of any such information is a foreigner, he/she will be considered to be within the territory of India for this purpose.
An SSMI shall deploy technological measures to identify any information that depicts rape or any sexually explicit content or information that has previously been removed or disabled.
On its volition, if the SSMI removes any content, it shall provide a reasonable opportunity to the offender and explain the reasons for such removal.
The Ministry can also require any other intermediary, not being an SSMI, to comply with any or all the conditions mentioned under Rule 4 if its operations pose a material risk of harm to the sovereignty of the country.
3. Consequences of non-compliance
If an intermediary fails to comply with the Rules, it will not be eligible for the exemptions provided under Section 79 of the Information Technology Act, 2000 (“IT Act”). Section 79 of the IT Act exempts an intermediary from third party data, or communication links made available or hosted by him with certain exemptions. Therefore, if an intermediary fails to comply with the Rules, it will be liable for any third party data or information posted.
4. Blocking in case of emergency
In case of an emergency, the Authorized Officer, not below the rank of Joint Secretary to the Government of India, may write to the Secretary, Ministry of Information and Broadcasting for blocking any information, provided it is within the grounds mentioned under Sec 69A of the IT Act. The latter, if satisfied, can do so without affording to the identified publisher or intermediary, an opportunity of hearing. The final order shall be passed by the Secretary, Ministry of Information and Broadcasting after considering the recommendations of the Committee.
5. Code of Ethics and Procedures and Safeguards in relation to Digital Media
The Rules also lay down a Code of Ethics to reconcile the interests of digital media and the public. This Code is applicable to the following provided that they have a physical presence in India and conduct their business activities in a planned manner. -
Publishers of news and current affairs content, and
Publishers of online curated content
The Code of Ethics specifically states the requirements of publishers of news and current affairs content as well as that of online curated content. According to the Code, the publishers of news and current affairs content must comply with both the –
Norms of Journalistic Conduct of the Press Council of India; and
Programme Code under Section 5 of the Cable Television Networks Regulation) Act, 1995. The publishers of online curated content cannot display any content that is in violation of the laws of India. In addition, such publishers have to weigh their content against certain factors like threat to integrity and sovereignty of India, detriment to its friendly relations with foreign states, public order etc. Furthermore, the classification of online curated content will be based on the following ratings. The classification of content in the following categories will depend on factors like themes and messages, violence, nudity, sex, language etc:
6. Grievance redressal mechanism
The Rules endeavour to establish a Grievance Redressal Mechanism for resolving grievances relating to the content published by a publisher in relation to the Code of Ethics. The Redressal Mechanism operates on a three- tiered hierarchical structure:
(a) Level I - Self-regulation by the publishers:
Any person can file a grievance relating to the content published by a publisher in relation to the Code of Ethics with the Grievance Officer appointed by the publisher. In such a case, the latter is expected to dispose of the complaint within 15 days from its receipt.
(b) Level II - Self-regulation by the self-regulating bodies of the publishers:
If the outcome of the grievance is not communicated to the complainant within the said period by the Grievance Officer, the grievance shall automatically reach the self-regulating body of publishers. An appeal can also be preferred to the self- regulating body of publishers within 15 days in case the complainant is not satisfied with the outcome of the complaint. This body shall be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the fields of media, entertainment, human rights etc. It shall also ensure that all the publishers comply with the Code of Ethics. It is also empowered to issue guidance and advisories like censuring the publisher, directing the publisher to apologize and mandating the publisher to issue a disclaimer, etc while disposing of a grievance.
(c) Level III - Oversight mechanism by the Central Government:
The Ministry of Information and Broadcasting shall develop an oversight mechanism for ensuring adherence to the Code of Ethics by publishers and self-regulating bodies. The oversight mechanism shall lay down a Code of Ethics for the self-regulating bodies. Upon dissatisfaction with the decision of the self-regulating body of the publishers, an appeal can be made to the oversight mechanism. In case the publisher fails to comply with the directions of the self-regulating body, the latter can refer the matter to the oversight mechanism within 15 days.
7. Inter-Departmental Committee
The Ministry shall also form an Inter-Departmental Committee consisting of representatives from the ministries of Information and Broadcasting, Women and Child Development, Law and Justice etc. to hear the grievances. The oversight mechanism can refer the grievances relating to appeals from the decision of self-regulating bodies or violations of the Code of Ethics to the Inter Departmental Committee. The Committee is allowed to make recommendations relating to examination of the complaints but no final order can be passed without the approval of the Secretary, Ministry of Information and Broadcasting.
Owing to the rising popularity of social media platforms and OTT platforms, the enactment of the Rules places increased accountability requirements on the intermediaries and publishers of news and online curated content. In this light, an analysis of the Rules will enable a better understanding.
The Information Technology (Intermediaries guidelines) Rules, 2011 had treated all kinds of intermediaries on the same footing but the present rules have made certain distinctions as it places additional due diligence requirements upon SSMIs. The present Rules also cover publishers of news and online curated content in addition to specifying a structured grievance redressal mechanism in case of grievances about publication of news or online curated content which is a welcome step.
Rule 3 allows the government or any Court to pass the order of takedown if the intermediary stores, hosts or publishes any prohibited and unlawful information. It mandates an intermediary to implement the ‘takedown order’ within 36 hours without affording any opportunity of hearing to the alleged accused. There could be an issue of arbitrariness arising from this provision.
There have been many concerns that these Rules infringe upon the fundamental right to privacy enshrined in Article 21 and it is vital to analyse them.
The provision requiring the SSMIs to identify the ‘first originator of information’ is the one that threatens the right to privacy of the users. However, the right to privacy is not an absolute right. The Apex Court in the case of J.Puttaswamy (Retd) v Union of India held that the right to privacy is enshrined under Article 21 of the Constitution but it is not absolute and subject to reasonable restrictions imposed by the procedure established by law. To determine the reasonableness of the restrictions, the Court laid down a multifold test to weigh the restrictions imposed against the following standards- a) Legality b) Legitimate State Aim and c) Proportionality.
The Rules have been framed in lieu of the powers granted under Section 87 of the parent legislation. Sec 87(2)(z) of the IT Act allows the Central government to make rules for procedures in relation to blocking access to certain content while clause (zg) of Section 87(2) authorises the government to frame guidelines for the governance of intermediaries. Therefore, the Rules so framed are within the permissible powers of delegation and fulfil the condition of legality.
The Rules specify that only the SSMIs providing messaging as their primary service might have to identify ‘the ‘first originator of information’ in very specific cases like offences related to the integrity and sovereignty of India, incitement to an offence relating to rape, sexually explicit material or child sexual abuse material etc. The purpose behind the said provision seems legitimate as identification of ‘first originator of information’ is mandated only when there is a judicial order passed by a competent court or an authorised agency under Section 69A of the IT Act.
The second proviso to Rule 4(2) that requires identification of ‘first originator of information’ states that there will be no such need in case there are ‘less intrusive’ means available to identify the “first originator” of information. In addition, as already stated, it is only under very compelling circumstances that the eligible SSMIs would have to identify the ‘first originator’ of information.
Hence, the Rules have provided for certain safeguards which could pass the tests laid down in Puttaswamy.
Presently, the vires of the Rules is under challenge before the Courts.
The Intermediary Guidelines 2021 saw the light of day after a long wait. Many a times, the Courts were approached with prayers seeking for an expedient framework for governing social media and OTT platforms. Therefore, the guidelines are here to stay. They have been enacted, keeping in view, the right to privacy recognised under Article 21 of the Constitution, but also the necessity of the security of the State and enforcement of law and order. In this light, it would be interesting to see the Courts’ views on petitions challenging the vires of the new guidelines.
Tehseen S. Poonawalla v Union of India (2019) 15 SCC 649.
Justice KS Puttaswamy (Retd) v Union of India (2017) 10 SCC 1