Brief Note on the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

In the digital era, the public at large depends on social media for news, entertainment, etc. People’s dependence on social media is very dangerous at this time since there is a high risk of it being abused. For this reason, a need was felt for stringent rules for any form of communication of information via intermediaries. Pursuant to this, the Ministry of Electronics and Information Technology released the draft Information Technology (Intermediary Guideline) Rules, 2018 for public consultation. Consequently, on the 25 February of this year, the Government issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The 2021 Rules replace the Information Technology (Intermediaries Guidelines) Rules, 2011. The earlier set of rules which were only applicable to intermediaries. The new Rules also significantly broadened the area of intermediary oversight, as well as bringing online news content and Over-The-Top (“OTT”) platforms under its purview.

Highlights of the Rules 2021-

Due diligence: Rules, 2021, discusses the aspect of due diligence that intermediaries must obey. It also clarifies the scope of the safe harbor protections outlined in Section 79 of the Information Technology Act of 2000. Per se the rules, Intermediaries must exercise due diligence such as:

(i) Providing users, the privacy policy, rules and regulations, and terms and conditions for using its services. The policy must provide that the user is prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing any information that is contrary to societal norms, immoral, defamatory to the general public or misleads the general public.

(ii) Upon a court or government order, blocking access to illegal information within 36 hours.

(iii) The intermediary shall not publish any information that is against the interests, unity, integrity, and sovereignty of the state.
(iv) Within 24 hours of receiving a complaint, the intermediary shall take all appropriate steps to disable access to material that is non-consensual and sexual in nature.

(v) Identification of the First Originator of Information.

(vi) After a user’s registration has been canceled or withdrawn, the information gathered for registration should be stored180 days.

(vii) A grievance Officer to oversee victim complaints must be appointed and his information should be published on the intermediary’s website or application.

(viii) Mandatorily publishing a Monthly Compliance Report containing details of complaints received and action taken thereon.

(ix) As per the rules the intermediaries must appoint Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer.

(x) Additionally, for social media intermediaries there is an additional proviso for ‘Voluntary User Verification.

(xi) Significant Social Media Intermediary “shall endeavor to deploy” technology-based measures such as automated tools or other frameworks for proactively identifying any information that depicts any act or stimulation, whether explicit or implied with regards to rape, child sexual abuse or conduct and information identical to the content that has been removed/disabled.

Code of Ethics: The Code of Ethics under the Rules apply to publishers of digital media including such as news and current affairs content providers and OTT platforms. The 2021 Rules stipulate that news publishers in the digital media must adhere to Norms of Journalistic Conduct and the Cable Television Networks Regulation Act, 1995. For the OTT platforms, the necessary requirements are demarcating content into age-appropriate categories [Universal, U/A 7+, U/A 13+, U/A 16+, and Adult], introducing an age verification system for access to adult content and content accessibility to disabled people. A publisher of news and current affairs material, as well as a publisher of online curated content, are required to notify the Ministry of its entity’s details, as well as provide information and the required documentation to facilitate communication and coordination.

Grievance Redressal System: Under Rule 10 a grievance redressal mechanism has been established. It has three levels:

(i) Level 1-Self-regulation by the Publisher: This level entails the grievance redressal mechanism established by the Publisher. Rule 11 provides that an applicable entity must appoint a Grievance Redressal Officer who must resolve the grievance received by it within 15 days. The said officer would also serve as a point of contact for complaints related to the Code of Ethics.

(ii) Level 2- Self Regulatory Mechanism: Rule 12 establishes one or more self-regulatory bodies consisting of publishers. Thus, this stage is self-regulation by the aforementioned bodies. These bodies must be registered with the Ministry of Information and Broadcasting. This body will monitor the publisher’s compliance with the Code of Ethics, resolve complaints that have not been settled by the publisher within 15 days, and hear appeals lodged by complainants against the publisher’s decision.

(iii) Level 3 -Oversight Mechanism: There is the formation of Oversight Mechanism, which ensures adherence to the Code of Ethics by the publishers. This mechanism initiates an Inter-Departmental Committee for hearing grievances. The Authorized Officer will lead the committee, which will hear and investigate complaints or grievances received from Level I/ Level II or the ones made to MIB.

Blocking of Information: In an emergency, authorized officers may investigate digital media material and the Secretary, MIB, may issue an interim order blocking the use of such content. The final order for blocking will be passed only after the Inter-Departmental Committee gives the approval.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is a step toward in the digital area to protect the rights of the public at large and ensuring justice to all. The new rules aim to establish a self-regulatory framework for online intermediaries, social media sites, streaming services, and digital media firms. However, it has gone through various rounds of critic for going far beyond anything that is permissible in a democracy and being in contravention to the Fundamental Right of freedom of speech and expression. The Delhi High Court is yet to settle the ever-growing debate over the Rules in Foundation of Independent Journalism & Ors v. Union of India.

Author: Vibhuti Kaushik, a 3^rd Year student of B.B.A. LLB. Symbiosis Law School, Pune, intern at IIPRD. In case of any queries please contact/write back to us at [email protected].