Dr. Richa Singh
VIET, GB Nagar
Social media has brought the world closer “by democratising debates and enabling the exchange of ideas across borders. But this veneer of a seamless social media world has also caused an exponential rise in hate crimes, fake news, propaganda and brazenly libelous content. The same holds true for instant messaging services.”1 People use these platforms “to question the government and that strengthens India’s democratic fabric. The problem is ‘with the misuse of it. What should be done when that happens”?2
It is against this background, amidst growing concerns around lack of transparency, accountablity and rights of users related to digital media and after elaborate consultaton with the public and stakeholders, the information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 have been framed in exercise of powers under section 87 (2) of the information Technology Act, 2000 and in superession of the earlier information Technology (Intermediary Guidelines) Rules 2011. These Regulations were notified on Feb. 25, 2021.
The Digital India programme has now become a movement which is empowering common Indians with the power of technology. The extensive spread of mobile phones, Internet etc. has also enabled many social media platforms to expand their footprints in India. Common people are also using these platforms in a very significant way. “These Rules are a fine blend of liberal touch with gentle self regulatory framework”.3
Three Important Parts of the Guidelines
1. Guidelines related to Social Media to be administered by the Ministry of Electronics and Information Technology
2. Digital Media Ethics Code relating to Digital Media and OTT Platforms to be administered by the Ministry of Information and Broadcasting.
3. Establishing three- tier grievance redressal mechanism for news publishers and OTT Platforms and digital media.
Guidelines Related to Social Media to be administered by the Ministry of Electronics and Information Technology
Due diligence to be followed by intermediaries : The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
The term “Intermediaries” has been defined in Section 2(w) of The information Technology Act, 2000 – Intermeiary, 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-market places and cyber cafes.
Establishing Grievance Redressal Mechanism: The rules seek to empower the users by mandating the intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving resolving complaints from the users or victims. Intermediaries shall appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officer. Grievance Officer shall aknowledge the complaint within 24 hours and resolve it within 15 days from its receipt.
Ensuring online safety and dignity of users, specially Women : 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.
Two categories of social media intermediaries : To encourage innovations and enable growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirement, the Rules make a distinction between Social Media Intermediaries and Significant Social Media Intermediaries. This distinction is based on the number of users on the social media platform.
– Government is empowered to notify the threshold of user base that will distinguish between social media intermediaries and significant social media intermediaries.
– Additional due diligence to be followed by Significant Social Media Intermediary.
– Appoint a Chief compliance Officer who shall be responsible for ensuring comliance with the Act and Rules. Such a person should be a resident in India.
– Appoint a Nodal Contact person for 24×7 coordination with law enforcement agencies. Such a person should be a resident in India.
– Appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism, Such a person shall be a resident in India.
– 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 by the significant social media intermediary.
Identifying the First Originator of Information –
Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution of punishment of an offence related to sovereignty and integrity of India, the security of the State, Friendly relations with foreign State, or public order or of incitement to an offence relating to the above or in relation with rape, sexually expliect material or child sexual abuse material punishable with imprisonment for a term of not less than five years.
– Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.
– Publishing physical contact address by Significant social Media Intermediary on its website or mobile app or both.
Voluntary user verification mechanism : Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with demonstrable and visible mark of verification.
Giving users an opportunity to be heard : In cases where significant social media intermediaries remove or disable access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users must be provided an adequate and reasonable opportunity to dispute the action taken by the intermdiary.
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 authorised officer should not host or publish any information which is prohibited under any law in relation to the interest of the soverreignty and integrity of India, public order, friendly relations with foreign countries etc.
The Rules will come in effect from the date of their publicaiton in the gazette, except for the additional due diligence for significant social media intermediaries, which shall come in effect 3 months after publication of these Rules.
Digital Media Ethics Code relating to Digital Media and OTT Platforms to be administered by the Ministry or Information and Broadcasting
Regarding widespread concerns over unregulated OTT Platforms and digital media, the government recieved complaints from civil society and parents requested interventions. So, a conscious decision was taken that issues relating to digital media and OTT and other creative programmes on Intenet shall be administered by the Ministry of Information and Broadcasting but the overall architecture shall be under the Information Technology Act, which governs digital platforms. Developing self-Regulatory Mechanism – After series of consultations by the Ministry of Information and Boradcasting, OTT players have been urged to develop “self-regulatory mechanism.”
The code of Ethics for online news, OTT platforms and digital media prescribe the guidelines to be followed. Code of Ethics has been notified under Section 87 of Information Technology Act- These Rules empower the Ministry of Information and Broadcasting to implement Part III of the Rules which prescribe the following :
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 –
(a) U (Universal)
(b) U/A 7+
(b) U/A 13+
(c) U/A 16+, and
(e) A (Adult).
Parental locks – 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”.
Displaying age related classification specific to each content or programme – together with a content description informaing the user about the nature of the content, and advising viewer description (If applicable) at the begining of every programme enabling the user to make an informed decision, prior to watching the programme.
Observing norms of conduct by publishers of news on digital media – would be required to observe Norms and Jouralistic conduct of the Press council of India and the Programme Code under the Cable Television Networks Regulations Act thereby providing a level playing field between the offline (Prime TV) and digitale media.
Establishing three-tier Grievance Redressal Mechanism for news publishers and OTT Platforms and digital media
A three – level grievance redressal mechanism has been established under the ruels with different levels of self-regulation.
(a) Level I : Self-regulation by the publishers
(b) Level II : Self-regulation by the self-regulating bodies of the publishers.
(c) Level III: Oversight mechanism.
Self-regulation by the publisher : Publisher shall apppoint a Grievance Redressal Officer based in India who shall be responsible for the rdressal of grievance received by it. The Officer shall takes decision on every grievance recieved by it within 15 days.
Self-regulatory body : There may be one or more self-regulatory bodies of publisher. Such a body shall be headed by a retired judges of the Supreme Court, a High ,Court or an Independent Eminet Person and have not more than six members.
Registration with the Ministry of I&B – Regularoty Bodies so constitued will have to register with the Ministry of Information and Boradcasting. 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 : The Ministry of Information and Boradcasting 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.
The Oversight Mechanism function “will be played by a body that is not an autonomous regulatior but one composed of high ranking bureaucrats without any independent or outside interference or accountablity. This provides for the discretionary exercise of government powers of censorship over these sectors.’4
IT and law minister Ravi Shankar Prasad has been in the thick of things as the new guidelines social media became a flashpoint for a showdown between the government and Twitter and WhatsApp over issues of privacy and free speech.They are free ‘to do business in India, earn profit, and enhance their user base. But they have to be accountable to the Constitution and laws of India. Having operations in India, but following the Laws of America is plainly unacceptable to us.’5 The government on June 6, 2011 sent out ‘one last notice to U.S.-based social media platform Twitter to immediately comply with the new IT Rules that came into effect on May 26, 2021 and warned that failure to do so will lead to the platform losing exemption from liablility under the IT Act.’6
The Indian government is the custodian of the freedoms and rights guaranteed to the citizens of the country, who can hold the government to account if that doesn’t happen. Tech giants must understand they cannot undermine the strong foundations of the world’s largest democracy by refusing to follow Indian laws. It would be unfortunate if this non-compliance were to trigger a further worsening of the already poor relationship between some social media players and the Government.
1. Bupendra Yadav; National General Secretary, BJP and Rajya Sabha Member, Big Tech’s excess;The Indian Express; New Delhi; June-1, 2021
2. Bupendra Yadav; National General Secretary, BJP and Rajya Sabha Member, Big Tech’s excess;The Indian Express; New Delhi; June-1, 2021
3. Dr. Ravi Pratap Singh; Government Makes Social Media and OTT Platforms More Accountable and Responsible;PD/May/2021/71
4. Prof. V.P. Gupta; Social Media, Digital Media & OTT Platforms; Competition Success Review; May 2021
5. Ravi Shankar Prasad; IT and law minister; The Time of India; New Delhi; June-2, 2021
6. The Hindu; New Delhi; June-6, 2021
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