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

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]

It Act

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).

Leave a Reply

Categories

Archives

  • October 2024
  • September 2024
  • August 2024
  • July 2024
  • June 2024
  • May 2024
  • April 2024
  • March 2024
  • February 2024
  • January 2024
  • December 2023
  • November 2023
  • October 2023
  • September 2023
  • August 2023
  • July 2023
  • June 2023
  • May 2023
  • April 2023
  • March 2023
  • February 2023
  • January 2023
  • December 2022
  • November 2022
  • October 2022
  • September 2022
  • August 2022
  • July 2022
  • June 2022
  • May 2022
  • April 2022
  • March 2022
  • February 2022
  • January 2022
  • December 2021
  • November 2021
  • October 2021
  • September 2021
  • August 2021
  • July 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • January 2011
  • December 2010
  • September 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010