Intermediary Rules, 2021 - How soft is the soft-touch oversight mechanism?

Contributed by Hammurabi & Solomon Partners




With the country driven towards Digital India, power of technology has also seen a drastic rise. Proliferation of social media has been witnessed at a large scale and with limited rights to “safeguard” the users. Few major social media platforms in India have also published the number of users active/ registered, for instance, WhatsApp has 53 Crore users; YouTube has 44.8 Crore; Facebook has 41 Crore; Instagram has 21 Crore and Twitter has 1.75 Crore users. The power and might of Social Media is such that it can make or break a Party/Person/Corporates’ reputation and goodwill within a fraction of seconds. Therefore, in the aftermath of the recent developments, whether in the CAA/NRC protests or during the Farmers Protests, whereafter on a PIL filed with respect to the regulation of Social Media contents, pursuant to the tiff between the Central Government and Twitter, the Supreme Court had issued notice to the Central Government recently, that an urgent need was felt to tame this untamed/unruly horse.


In the wake of the above, and with a view to bring in more transparency as well as accountability to the functioning of these Social Media as well as the Digital Media Companies that the Ministry of Electronics and Information Technology (“MeitY”) on 25th February, 2021 introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules/ Rules”) in consultation with the Ministry of Information and Broadcasting (“MIB”). The rules have been in accordance to the Government’s rule making power in terms of Section 87 of the Information Technology Act, 2000 (“IT Act”). The Intermediary Rules have replaced the Information Technology (Intermediaries guidelines) Rules, 2011 (or the 2011 Rules). The Rules now aims at having a “harmonious, soft-touch oversight mechanism in relation to social media platform as well as digital media and OTT platforms”.


The Rule now envisages three types of entities which i.e. a) “intermediaries” which is covered under section 2(w) of the IT Act; b) “Social Media Intermediaries” (“SMI”), as entities, which enable online interaction between two or more users and defined under Rule 2(w) of the Rules; and c) “Significant Social Media Intermediary” (“SSMI”) having number of such registered users in India above such threshold as notified by the Central Government defined under Rule 2(w) of the Rules. That the Government vide notification dated 26.02.2021 [S.O. 942(E)] specified fifty lakh registered users in India as the threshold for a social media intermediary to be considered a significant social media intermediary.


The Intermediary Rules will now have a significant impact and will play an important role on keeping a strict check and balance on the contents which are published/ released on the on such social media platforms.


The Rule covers various portals of the social media network, digital media sharing sites, applications, blogs and other such functional intermediaries. Part II of the Rules specifically covers the SMI and SSMI and lays down various Due Diligence and compliances to be done along with a Grievance Redressal Mechanism. Every intermediary will now have to publish the rules and regulations, privacy policy and user agreements for access or usage of its computer resource by any person which shall also inform the users of its computer resource not to host, display, upload, modify, publish, transmit, store or share any such information which belongs to any other person or in a broader sense threatens the unity, integrity, defence, security or sovereignty of India. Further the intermediary will now have to remove or disable access to that information as early as possible, but no case later that thirty-six hours from the receipt of the court order or on being notified by the Appropriate Government or its agency. Intermediary will also on receipt of such order have to provide information under its control not later than seventy two hours.


Under the said Rules, a Grievance Redressal Mechanism of intermediary has been brought into force wherein, the intermediary shall publish on its website, mobile based application or both, the name of the Grievance Officer and his contact details as well as such details and mechanism wherein a user/ victim can make their complaints against any violation. The Grievance Officer will have to now acknowledge the complaint within twenty four hours and dispose off such complaints within a period of 15 days from the date of its receipt. Additional compliance to be done by SSMI would be to appoint a Chief Compliance Officer, a 24*7 Nodal Officer and a Resident Grievance Officer who shall publish periodic compliance report every month mentioning the details of the complaints received and actions taken. One of the key aspects of the Rule introduced is in regard to such intermediary who are into the service of messaging, wherein now such messaging intermediary shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction.


Part III of the Rules entails the Code of Ethics and Procedure and Safeguards in Relation to Digital Media. Publishers of News and Current Affairs Content and Online Curated Content, which operates in India, or systematically create their contents available in the territory in India, must adhere to the Code of Ethics. That amongst other requirements, the publishers of News and Current Affairs must comply with the norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978, the Programme Code under Section 5 of the Cable Television Networks Regulation Act, 1995 (Appendix). Part III will be governed by the MIB, wherein the Rules require a publisher operating in the territory of India, to furnish certain information (such as the details of the entity) to the MIB within 30 days of the publication of the Rules. Further, these publishers are now also required to publish monthly compliance reports with the details of the grievances received.


A three-tiered regulatory framework for grievance has also been introduced. Level 1 (Self-Regulating by publisher) wherein each publisher must establish a grievance redressal mechanism and appoint a Grievance officer based in India and display the contact details at an appropriate place on its website or interface. The Grievance Officer will be the contact point for receiving any grievance relating to the Code of Ethics. Level II (Creation of Self Regulating Body) wherein one or more self-regulatory bodies of publishers, being independent body will be constituted by the publisher or their associations which shall be headed by a retired judge of the Supreme Court, a High Court or an independent eminent person to be registered by the MIB. The self-regulating body can address all grievances which the publisher fails to resolve in 15 days and/or hear appeals from such complainant and issue guidelines or advisories to such publisher for ensuring compliance to the Code of Ethics. Level III (Oversight Mechanism by the Government) wherein MIB will have the power to constitute an Inter-Departmental Committee (“Committee”) to hear such complaints regarding the violation or contravention of the Code of Ethics as well such grievances which arises with respect to the decision taken in Level I and Level II. Further, the Committee can also issue appropriate guidance and advisories to the publishers as well as issue orders and directions to the publishers as they deem fit. At the hearing stage, the Committee shall examine the grievance and can issue recommendations to the MIB for the removal of such content which hampers/ harms the sovereignty, integrity, or in order to prevent cognizable offences. MIB after taking into consideration the recommendations of the Committee, issue appropriate orders and directions for the publisher and the same will be done by an Authorized Officer before the Secretary, MIB. In case of an emergency nature, for which no delay in acceptable, the Authorized Officer may write to the Secretary, MIB and on being satisfied that it is necessary or expedient and justifiable for blocking for public access of any information issue such directions for blocking under Section 69A of the IT Act.


ANALYSIS AND WAY FORWARD


There are concerns raised by various stakeholders that the Rules lack the necessary teeth to tackle the misuse of Social Media by unscrupulous users. There are also criticisms that merely by providing the Grievance Officers, may not be adequate redressal of the issues and concerns that are likely to arise. The execution of the decision of the Grievance Officers, may require more clarity. Further so far as the Digital Media is concerned there is a surge of sex, nudity and extreme violence and brutalism in the contents which may have adverse impact on the adolescent children and therefore stricter guidelines are required in this regard. Also, while there may be clarity on the no-no’s with respect to child pornography etc., however there are various subjective issues where in terms used like unity, integrity, defence, security or sovereignty of India, have been left vague in order to be interpreted either ways. The uproar in relation to the criminal complaint filed against the Amazon Prime India Head, Aparna Purohit is one such example of the extremist mindset wherein, the Supreme Court had to intervene to grant anticipatory bail to Ms. Purohit. Therefore, in the present socio-political environment where moral policing is on an ever-rise, it is even more necessary and relevant to frame the guidelines with utmost care and concern to the prevalent issues.


Rules certainly tackle the concerns of transparency as well as accountability and the rights of the users related to social media as well as digital media. With the increase in the number of users on all such platform, the need of the hour does demand a certain framework to deal with the various crimes, illegal activities, persistent spread of fake news, and misuse of social media (anti-national element) which usually originate from such media platform. The rules have specifically made Grievance Redressal Mechanism to safe-guard the interest of its users both for social media platforms as well as digital media platform. The other challenge that would remain to be seen is how these Redressal Mechanisms tackle such high volumes of user complaints and how does the Rules pan out in the course of time.


Contributed by Hammurabi & Solomon Partners


The above article is authored by Ms. Shweta Bharti (Senior Partner) and Mr. Avinash Singh(Principal Associate).


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