ANALYSIS OF THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES & DIGITAL MEDIA ETHICS CODE) RULES, 2021

by Garima Mehta,

Abstract

The following article deals with the Analysis of the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021. After years of discussions and debates, the Ministry of Electronics and Information Technology, Government of India has notified new rules under the Information Technology Act, 2000 (“IT Act”) for monitoring social media digital media platforms. The new rules, viz. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) inter alia aims to serve a dual-purpose: (1) increasing the accountability of the social media platforms (such as Facebook, Instagram, Twitter etc.) to prevent their misuse and abuse; and (2) empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution. The Intermediary Guidelines have been framed in exercise of powers under section 87(2) of the IT Act and supersede the previous Information Technology (Intermediary Guidelines) Rules, 2011.

Digital Media[i]

Digital media refers to technology or content that’s consumed or encrypted through a machine-readable platform. While the term “digital” encompasses anything with numeral digits, the term “media” refers to a method of transmitting information. Therefore, digital media can be defined as information shared through a digital device or screen. Essentially, it’s any form of media that relies on an electronic device for its creation, distribution, view, and storage.

Who Uses Digital Media?

Video game designers: Video game designers use digital media to create games through computer software. They develop stories and plots, characters, and design scene layouts.

Animators: Animators use digital media to bring their drawings and illustrations to life. They can work on movies, video games, television shows, and commercials. Though they use their hands to draw, animators transfer their drawings to a computer program to give it the ability to move. An animator’s job involves the development of storyboards, animation editing, and creating visual effects to enhance their animations.

Filmmakers: Filmmakers create, edit, and use digital video for entertainment and educational purposes. Their work is delivered through various formats and can be found in movie theaters or online viewing platforms.

Video editors: Similar to filmmakers, video editors capture and piece together video footage for TV shows, films, sporting events, music videos, and other videos. They use video editing software to enhance the quality of the video before it is disseminated to an audience.

Videographers: Videographers use digital media to capture video for various clients. While some film weddings or documentaries, others create promotional video content for a larger corporation.

Broadcasters: Broadcasters refer to digital journalists that use cameras to relay news and information to the public. They may also use their knowledge of coding, programming, graphics, and multimedia design to assist in their daily digital media responsibilities.

Social media managers: Social media managers use social media to advertise, promote, and market content to a target audience. They monitor a company’s social media channels, reply to comments from social media users, develop various social media strategies, and implement these strategies to increase brand awareness and gain greater online viewership.

Web developers: Web developers use digital media to create web pages and websites for their clients. These online platforms disseminate various media including blog posts, videos, and images.

Graphic designers: Graphic designers use digital media to create logos, images, or other visual concepts for various clients. They collaborate with their clients and use their feedback to create a design that fits their brand. As with animators, though a graphic designer’s sketch is often done by hand, they transfer it to a design software to refine their creation.

Sound editors: Sound editors use digital media to select and gather sound recordings. They do this in preparation for sound mixing or mastering.

Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021[ii]

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified on February 25, 2021. The Rules have been notified under the Information Technology Act, 2000. The Act provides for the regulation of electronic transactions and cybercrime. The 2021 Rules replace the Information Technology (Intermediaries Guidelines) Rules, 2011.

Due diligence by intermediaries

Intermediaries are entities that store or transmit data on behalf of other persons. Intermediaries include internet or telecom service providers, online marketplaces, and social media platforms.

The due diligence to be observed by intermediaries includes:
informing users about rules and regulations, privacy policy, and terms and conditions for usage of its services,
blocking access to unlawful information within 36 hours upon an order from the Court, or the government.
retaining information collected for the registration of a user for 180 days after cancellation or withdrawal of registration. Intermediaries are required to report cybersecurity incidents and share related information with the Indian Computer Emergency Response Team.

Significant social media intermediaries

A social media intermediary with registered users in India above a threshold (to be notified) will be classified as Significant Social Media Intermediaries.

Additional due diligence to be observed by these intermediaries include:

appointing a chief compliance officer to ensure compliance with the IT Act and the Rules.
appointing a grievance officer residing in India, and (iii) publishing a monthly compliance report.

Intermediaries which provide messaging as a primary service must enable the identification of the first originator of the information on its platform. This originator must be disclosed if required by an order from the Court or the government. Such order will be passed for specified purposes including investigation of offences related to sovereignty and security of the state, public order, or sexual violence. No such order will be passed if less intrusive means are effective in identifying the originator of the information. The intermediary will not be required to disclose the contents of any communication. If the first originator is located outside India, the first originator of that information within India will be deemed to be the first originator.

Key Features of the Intermediary Guidelines[iii]

Any intermediary including a social media intermediary needs to observe the prescribed due diligence measures in the course of discharging its duties. These due diligence measures inter alia include:

prominently publishing on the website, mobile based application or both, the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person.

the rules and regulations, privacy policy and the user agreement should inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that inter alia.

belongs to another person and to which the user does not have a right.

is defamatory, obscene, pornographic, pedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libelous, racially or ethnically objectionable, relating or encouraging money laundering or gambling or otherwise inconsistent with or contrary to the laws in forceis harmful to the child; infringes any patent, trademark, copyright or other proprietary rights.

deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact.

threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or in insulting another nation.

an intermediary, upon receiving actual knowledge in the form of a court order or upon being notified by the appropriate government or agency under the IT Act, shall not host, store or publish any unlawful information which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, in relation to contempt of court, defamation, incitement to an offence relating to the above or any information which is prohibited under any law for the time being in force.

where an intermediary collects information from a user for registration on the computer resource, it shall retain the information for a period of 180 days after any cancellation or withdrawal of the registration, as the case may be.

the intermediary shall, immediately but not later than 72 hours of the receipt of an order, provide information under its control or possession, or assistance to the Government agency which is lawfully authorized for investigative or protective or cyber security activities, for the purposes of verification of identity, or for the prevention, detection, investigation or prosecution, of offences under any law for the time being in force, or for cyber security incidents.

the intermediary shall report cyber security incidents and share related information with the Indian Computer Emergency Response Team in accordance with the policies and procedures as prescribed under the Information Technology (The Indian Computer

Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013.

A social media intermediary (i.e., an intermediary that primarily or solely enables online interaction between two or more users) is required to comply with certain additional due diligence measure, which inter alia include:

appointing a chief compliance officer who will be responsible for ensuring compliance with the provisions of the IT Act and rules framed thereunder and will also be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by the intermediary where the officer fails to ensure that such intermediary observes due diligence while discharging its duties under the IT Act and rules framed thereunder.

appointment of a nodal contact person for 24×7 coordination with law enforcement agencies and officers to ensure compliance with their orders or requisitions.

publishing a compliance report every month mentioning the details of complaints received and action taken thereon, and the number of specific communication links or parts of information that the intermediary has removed or disabled access to in pursuance of any proactive monitoring conducted by using automated tools or any other relevant information, as may be specified.

A significant social media intermediary (i.e., an intermediary having registered users in India above such threshold as notified by the Central Government) will inter alia endeavor to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which has been disabled on the computer resource of such intermediary.

A significant social media intermediary is required to have a physical contact address in India published on its website, mobile based application or both, for the purposes of receiving the communications addressed to it.

A social media intermediary is required to enable the user who register for the services from India, or use the services in India, to voluntarily verify their accounts by using any appropriate mechanism, including the active Indian mobile number of such users and where any user voluntarily verifies the account, such user shall be provided with a demonstrable and visible mark of verification, which shall be visible to all users of the service.

A publisher of new and current affairs contents is required to adhere with the provision of the Code of Ethics, annexed with the Intermediary Guidelines. For the purposes of ensuring observance and adherence with the prescribed Code of Ethics by publishers and for addressing the grievances against the publishers, a three-tier grievance redressal structure has been prescribed, as below:

Level I is the self-regulating mechanism which inter alia appoints a grievance officer who shall be responsible for the redressal of grievances received by him.

Level II is the self-regulating body, i.e., there shall be one or more independent self-regulating bodies of publishers, which bodies shall inter alia be responsible to oversee and ensure the alignment and adherence with the Code of Ethics, address grievances which have not been resolved by the publishers within the fifteen days’ specified period etc.

Level III is the oversight mechanism, i.e., the Ministry of Electronics and Information Technology shall coordinate and facilitate the adherence with the prescribed Code of Ethics by publishers and self-regulating bodies, develop and oversight mechanism for performing the prescribed functions which inter alia include publishing a charter for self-regulating bodies including Code of Practices for such bodies, establishing an Inter-Departmental Committee for hearing grievances, issuing appropriate guidance and advisories to publishers etc.

Code of Ethics for Digital Media Publishers

The Rules prescribe the code of ethics to be observed by publishers of digital media including: (i) news and current affairs content providers, and (ii) online curated content providers (also known as OTT platforms).

For news and current affairs, the following existing codes will apply:

norms of journalistic conduct formulated by the Press Council of India.
programme code under the Cable Television Networks Regulation Act, 1995.

For OTT platforms, the requirements include: (i) classifying content in age-appropriate categories as specified, (ii) implementing an age verification mechanism for access to adult content, and access control measures such as parental controls, and (iii) improving accessibility of content for disabled persons.

Grievance redressal

The Rules require the intermediaries and digital media publishers to provide for a grievance redressal mechanism. The intermediaries are required to designate a grievance officer to address complaints against violation of the Rules. Complaints must be acknowledged within 24 hours and disposed of within 15 days.

In case of digital media publishers (news and OTT), a three-tier grievance redressal mechanism will be in place for dealing with complaints regarding content:

self-regulation by the publishers.
self-regulation by the self-regulating bodies of the publishers.
oversight mechanism by the central government. The publisher will 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 (MIB) will establish an Inter-Departmental Committee to hear grievances not addressed by self-regulatory bodies and also oversee adherence to the code of ethics.

Blocking of content in case of emergency

In case of emergencies, the authorised officers may examine digital media content and the Secretary, MIB may pass an interim direction for blocking of such content. The final order for blocking content will be passed only after the approval by the Inter-Departmental Committee. In case of non-approval from the Committee, the content must be unblocked

Conclusion

The Government of India has observed the models prevailing in different countries such as Singapore, Australia, European Union and the United Kingdom when contemplating the extent and nature of the proposed framework for regulating social media and digital media platforms in India.

The development of the Intermediary Guidelines is essentially an attempt to develop a quintessential soft-touch, self-regulatory architecture combined with a three-tier grievance redressal mechanism for digital media platforms operating in India.

However, compliance with the provisions of the Intermediary Guidelines is likely to be a difficult task for the social media and digital media platforms and is also being argued as an attempt to restrict the freedom of speech and expression. A tightrope balance would be needed to address the issues of protection and safeguarding of rights of victims of social media versus the individual freedom of expression.

ENDNOTES

[i]https://thecdm.ca/program/digital-media

[ii]https://www.medianama.com/wp-content/uploads/2021/02/Intermediary-Guidelines-2021.pdf

[iii]https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021

[iv] picture credit: stepsoftware