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Information Technology Rules, 2021

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The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is secondary or subordinate legislation that suppresses India's Intermediary Guidelines Rules 2011.[lower-alpha 1][1] The 2021 rules have stemmed from section 87 of the Information Technology Act, 2000 and are a combination of the draft Intermediaries Rules, 2018 and the OTT Regulation and Code of Ethics for Digital Media.[2][3][4]

Intermediary Guidelines and Digital Media Ethics Code
Citationvia The Gazette of India
Commenced25 February 2021
Introduced byGovernment of India
Status: In force


The Central Government of India along with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB) have coordinated in the development of the rules.[5]

Intermediaries had until 25 May 2021 to comply with the rules.[6]

These rules have been framed in exercise of powers under section 87 (2) of the Information Technology (IT) Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.[7]

History

  • 2018

The Supreme Court Of India(SC) had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications.[8]

In the Monsoon session of the Parliament in 2018 a motion on “Misuse of social media platforms and spreading of fake news” was admitted. The Minister for Electronics and IT, accordingly made a detailed statement of the "resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law". MeitY then prepared the draft Information Technology (Intermediary Guidelines) Rules 2018 to replace the 2011 rules.[9] The Information Technology Act, 2000 provided that intermediaries are protected liabilities in some cases.[10] The draft 2018 Rules sought to elaborate the liabilities and responsibilities of the intermediaries in a better way.[10] Further the draft Rules have been made "in order to prevent spreading of fake news, curb obscene information on the internet, prevent misuse of social-media platforms and to provide security to the users."[10] The move followed a notice issued to WhatsApp in July 2018, warning it against helping to spread fake news and look on as a "mute spectator".[11]

In relation to the Prajawala case, on 11 December 2018, the Supreme Court of India observed that "the Government of India may frame the necessary Guidelines / SOP and implement them within two weeks so as to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications." Further a parliamentary report laid in 2020 studied the effect of pornography on children.[12][13]

On 5 January 2019 a government open house was held to discuss the Rules.[14] Further, ten days were given for counter comments, until 28 January.[15] On 21 September 2019 the Centre informed the Madras High Court bench under Justice M Sathyanarayanan that deliberations on the Draft Rules 2018 had been completed.[16] Facebook wrote a plea to transfer the matter to the Supreme Court.[16][17]

MeitY had invited comments on proposed amendments early in 2019. The amendments were seen by many to "overstep the aforesaid intention sparking concerns of violating free speech and privacy rights of individuals."[18] It is seen that "the guidelines suffer with excessive delegation of powers and shift the burden of responsibility of identification of unlawful content from a government/ judiciary to intermediaries."[19] A total of 171 comments were received by MeitY; all of the comments were published for counter comments.[20][21] On 21 October 2019, MeitY asked the court for three months’ time for finalisation of the Intermediary Rules, 2018.[20]

  • 2020

An Ad-hoc committee of the Rajya Sabha laid its report after studying the alarming issue of pornography on social media and its effect on children and society as a whole and recommended for enabling identification of the first originator of such contents.[22]

The government brought video streaming over-the-top (OTT) platforms under the ambit of the Ministry of Information and Broadcasting[23]

About

Guidelines for Social Media/Intermediaries:[24]

  • Categories of Social Media Intermediaries:
    • Based on the number of users, on the social media platform intermediaries have been divided in two groups:
      • Social media intermediaries.
      • Significant social media intermediaries.
  • Due Diligence to be Followed by Intermediaries:
    • In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
    • The safe harbour provisions have been defined under Section 79 of the IT Act, and protect social media intermediaries by giving them immunity from legal prosecution for any content posted on their platforms.
  • Grievance Redressal Mechanism is Mandatory:
    • Intermediaries shall appoint a Grievance Officer to deal with complaints and share the name and contact details of such officers.
    • Grievance Officer shall acknowledge the complaint within twenty four hours and resolve it within fifteen days from its receipt.
  • Ensuring Online Safety and Dignity of Users:
    • Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation including morphed images etc.
    • Such a complaint can be filed either by the individual or by any other person on his/her behalf.
  • Additional Due Diligence for the Significant Social Media Intermediaries:
    • Appointments: Need to appoint Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer, all of whom should be resident in India.
    • Compliance Report: Need to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively.
    • Enabling Identity of the Originator:
      • Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information.
      • Required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order,
      • Or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.
  • Removal of Unlawful Information:
    • An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.

Rules for News Publishers and OTT (Over The Top)Platforms and Digital Media:[25]

  • For OTT
    • Self-Classification of Content:
      • The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
    • Parental Lock:
      • Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.
    • Display Rating:
      • Shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme enabling the user to make an informed decision, prior to watching the programme.
  • For Publishers of News on Digital Media :
    • They would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act 1995 thereby providing a level playing field between the offline (Print, TV) and digital media.
  • Grievance Redressal Mechanism:
    • A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
      • Level-I: Self-regulation by the publishers;
      • Level-II: Self-regulation by the self-regulating bodies of the publishers;
      • Level-III: Oversight mechanism.
  • Self-regulation by the Publisher:
    • Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it.
    • The officer shall take decision on every grievance received by it within 15 days.
  • Self-Regulatory Body:
    • There may be one or more self-regulatory bodies of publishers.
    • Such a body shall be headed by a retired judge of the SC, a High Court or independent eminent person and have not more than six members.
    • Such a body will have to register with the Ministry of Information and Broadcasting.
    • This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
  • Oversight Mechanism:
    • Ministry of Information and Broadcasting shall formulate an oversight mechanism.
    • It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.

Concerns

Concerns over the 2018 draft

Various issues have been pointed out with the rules such as restriction of free speech, unreasonable requirements such as automatic identification and removal of content, and lack of elaboration on how the five million users will be calculated.[26] Questions raised included if "intermediaries" include online media portals, raised by Free Software Movement of India.[27] Mozilla (Firefox), also raised issues with the draft Rules.[15] BSA (The Software Alliance) wrote to MeitY to "exclude enterprise cloud service providers" from the scope of the Rules and to remove the filtering obligations.[28]

Centre for Internet and Society has raised concerns with the draft rules and has asked for changes such as that draft Rule 3(2), Rule 3(4), Rule 3(5), Rule 3(10) be completely deleted.[29] Divij Joshi, Tech Policy Fellow at Mozilla, also recommends that draft Rule 3(5) be deleted and that "requirement to proactively identify and remove access to all 'unlawful content' is vague and overbroad."[30][31]

A joint letter written by a group of experts from research, academia, and media, including Faisal Farooqui, Karma Paljor, Nikhil Pahwa, Shamnad Basheer and professors from IIM Bangalore and IIT Bombay, and organisations including Free Software Foundation Tamil Nadu, Free Software Movement of India, Free Software Movement Karnataka and Software Freedom Law Centre, India, to MeitY, pointed out various issues the Rules could causes such as the traceability requirements interfering with the privacy rights of citizens.[lower-alpha 2][32]

Aftermath

Amit Khare, Secretary, Ministry of Information and Broadcasting has called the rules as a "progressive institutional mechanism".[33]

Immediately following the publication of the rules, a number of platforms advised creators of caution on the basis of the new rules.[34] Petitions have been filed challenging the rules with respect to the digital news media.[35][36]

The Foundation for Independent Journalism editor M. K. Venu (The Wire) and The News Minute editor Dhanya Rajendran filed the first case challenging the rules. LiveLaw, The Quint and Pratidhvani have challenged the rules in court.[37]

On 25 May 2021, the last day for intermediaries to comply, WhatsApp sued the Government of India over the rules.[38]

See also

References

Notes

  1. ↑ The IT Act elaborates that intermediaries must observe due diligence while discharging their duties, and also observe such other guidelines as prescribed by the Central Government. Accordingly, the Information Technology (Intermediaries Guidelines) Rules, 2011 came into being.
  2. ↑ Say the rights to privacy enshrined in the Puttaswamy judgement of the Supreme Court.

Citations

  1. ↑ Foundation, Internet Freedom (27 February 2021). "Explainer: Why India's new rules for social media, news sites are anti-democratic, unconstitutional". Scroll.in. Retrieved 2 March 2021.{{cite web}}: CS1 maint: url-status (link)
  2. ↑ "Latest Draft Intermediary Rules: Fixing big tech, by breaking our digital rights?". Internet Freedom Foundation. 25 February 2021. Retrieved 2 March 2021.
  3. ↑ The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018. Ministry of Electronics and Information Technology, Government of India.
  4. ↑ "Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021". SFLC.in. 27 February 2021. Retrieved 9 March 2021.{{cite web}}: CS1 maint: url-status (link)
  5. ↑ Dalmia, Vijay Pal (4 March 2021). "Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021". www.mondaq.com. Retrieved 5 March 2021.{{cite web}}: CS1 maint: url-status (link)
  6. ↑ "WhatsApp moves Delhi High Court against IT Intermediary Rules 2021 mandating it to trace first originator of information". Bar and Bench. 26 May 2021. Retrieved 26 May 2021.{{cite web}}: CS1 maint: url-status (link)
  7. ↑ "Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) Rules 2021". www.pib.gov.in. Retrieved 26 May 2021.
  8. ↑ Rajagopal, Krishnadas (25 December 2018). "Govt.'s draft rules to regulate social media echo SC orders". The Hindu. ISSN 0971-751X. Retrieved 26 May 2021.
  9. ↑ "Comments / suggestions invited on Draft of "The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018". Ministry of Electronics and Information Technology, Government of India.
  10. ↑ 10.0 10.1 10.2 "Analysis Of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 - Media, Telecoms, IT, Entertainment - India". www.mondaq.com. Retrieved 4 January 2020.
  11. ↑ Sonkar, Siddharth; Tarafder, Agnidipto (26 December 2018). "Unclear understanding of 'unlawful content' may end up curbing free speech". Business Standard India. Retrieved 4 January 2020.
  12. ↑ "Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) Rules 2021". Press Information Bureau, Government of India. Ministry of Electronics & IT. 25 February 2021. Retrieved 9 March 2021.{{cite web}}: CS1 maint: others (link) CS1 maint: url-status (link)
  13. ↑ "Prajwala Letter Suo Moto Writ Petition (CRL) No(s). 3/2015". Indian Kanoon.{{cite web}}: CS1 maint: url-status (link)
  14. ↑ "Government to hold open house on intermediary guidelines on January 5; publish comments online". The Economic Times. 2 January 2019. Retrieved 2 January 2020.
  15. ↑ 15.0 15.1 "Legal 'hole' in online draft". Telegraph India. Retrieved 4 January 2020.
  16. ↑ 16.0 16.1 S, Mohamed Imranullah (21 September 2019). "Draft rules to regulate social media ready: Government". The Hindu. ISSN 0971-751X. Retrieved 4 January 2020.
  17. ↑ T., Prashant Reddy (28 December 2018). "Liability, Not Encryption, Is What India's New Intermediary Regulations Are Trying to Fix". The Wire. Retrieved 4 January 2020. Author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy, New Delhi.
  18. ↑ Kittane, Purushotham (15 March 2019). "Under India's New Intermediary Rules, Fundamental Rights Take Backstage". OHRH, Faculty of Law, University of Oxford. Retrieved 4 January 2020.
  19. ↑ Consumer Unity and Trust Society (2019) "Counter Comments On The Submissions Received By Ministry Of Electronics And Information Technology On ‘The Information Technology Intermediary Guidelines (Amendment) Rules, 2018’"
  20. ↑ 20.0 20.1 "Stricter social media regulations in India to be finalised in three months: MeitY- Technology News, Firstpost". Firstpost Tech2. 21 October 2019. Retrieved 4 January 2020.
  21. ↑ Basu, Arindrajit (19 February 2019). "Resurrecting the marketplace of ideas". The Hindu @businessline. Retrieved 4 January 2020.
  22. ↑ "Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) Rules 2021". pib.gov.in. Retrieved 26 May 2021.
  23. ↑ "Government to govern Netflix, Amazon Prime and other OTT platforms". The Hindu. Special Correspondent. 11 November 2020. ISSN 0971-751X. Retrieved 26 May 2021.{{cite news}}: CS1 maint: others (link)
  24. ↑ Chaturvedi, Anumeha; Dave, Sachin. "Aim to comply with India's new social media guidelines, says Facebook". The Economic Times. Retrieved 26 May 2021.
  25. ↑ "Digital news publishers and OTT Platforms rules: Govt says this about Part III guidelines". Zee Business. 25 March 2021. Retrieved 26 May 2021.
  26. ↑ "Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018". PRS Legislative Research. 30 January 2019. Retrieved 2 January 2020.
  27. ↑ "Do 'intermediaries' include online media portals, asks FSMI". The New Indian Express. 14 February 2019. Retrieved 4 January 2020.
  28. ↑ BSA The Software Alliance (31 January 2019). BSA Submission on Draft Information Technology [Intermediary Guidelines (Amendment) Rules] 2018
  29. ↑ Gurshabad Grover et al (31 January 2019). Response to the Draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018. Centre for Internet and Society (India)
  30. ↑ Joshi, Divij (2019). "Towards a Safer Social Media – Submissions to the Ministry of Information and Technology, Government of India, on the Draft Information Technology Intermediary Guidelines (Amendment) Rules, 2018". SSRN Electronic Journal. doi:10.2139/ssrn.3326368. ISSN 1556-5068.
  31. ↑ "Meet our Fellows". Mozilla Foundation. Retrieved 14 June 2020.
  32. ↑ Khetarpal, Sonal (6 February 2019). "Draft Information Technology rules: Experts write to MeitY, highlight key concerns". Business Today. Retrieved 4 January 2020.
  33. ↑ Khare, Amit (8 March 2021). "Doubts about new IT rules are groundless". The Indian Express. Retrieved 9 March 2021.{{cite web}}: CS1 maint: url-status (link)
  34. ↑ Jha, Lata (8 March 2021). "OTTs tread cautiously, cancel shows". mint. Retrieved 9 March 2021.
  35. ↑ "Delhi HC seeks Centre's response on plea challenging new IT Rules". The Times of India. PTI. 9 March 2021. Retrieved 9 March 2021.{{cite web}}: CS1 maint: others (link) CS1 maint: url-status (link)
  36. ↑ "Delhi HC Issues Notice in The Wire's Challenge to New IT Rules". The Wire. 9 March 2021. Retrieved 9 March 2021.{{cite web}}: CS1 maint: url-status (link)
  37. ↑ "In another challenge to the new IT Rules 2021, Kannada News Portal 'Pratidhvani' files petition". Latest Laws. 31 March 2021. Retrieved 26 May 2021.{{cite web}}: CS1 maint: url-status (link)
  38. ↑ "WhatsApp sues India govt, says new rules mean end to privacy: Report". mint. 26 May 2021. Retrieved 26 May 2021.

Further reading

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