THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021
Author - Jahnvi Shah
This article throws light on the new IT Rules of 2021 vis-à-vis the IT Rules of 2011
The Ministry of Electronics and Information Technology (MEITY) has formulated a new Information Technology Rules 2021 (“IT Rules, 2021”) to abolish the Information Technology Rules 2011 (“IT Rules, 2011”). The main purpose of IT Rules, 2021 is to provide a comprehensive grievance mechanism for users of social media and over-the-top (“OTT”) platforms. Several factors have forced authorities to create such strict rules to regulate the digital world. To exemplify, women and children are more vulnerable to sexual crimes on social media and thus, it’s pertinent to ensure their safety on the internet.
The main pitfall of the IT Act, 2011 was that it infringes on individual privacy. Following the new legislation, online publishers and social media intermediaries must comply with the IT Rules, 2021.
According to data from PIB, India’s WhatsApp users are 5.3 billion, YouTube users are 4.48 billion, Facebook users are 4.1 billion, Instagram users are 2.1 billion, and Twitter users are 175 million. These statistics show the growth of domestic social media intermediaries in our country. Facebook was used as a successful tool in the 2021 election and the use of technology and social media also became important during the pandemic.
Regulating content on the Internet has always been a tedious task. It has been the subject of much criticism, especially in the pandemic era. This criticism has forced authorities to develop new strategies to regulate this content. Most of these criticisms were not addressed in the existing rules of the IT Act 2011.
Analysis of the Intermediaries Rules:
1. Intermediary Due Diligence – Under IT Rules, 2021, intermediary, social media intermediary, and significant social media intermediary must meet the following requirements:
- Under the Constitution, there shall be no act that threatens India’s sovereignty and integrity. If the intermediary obtains information about any illegal activities on its platform then by written court order, it must remove such information within 36 hours of receiving the actual knowledge.
- The rule requires that a complaint officer be appointed who must approve the complaint within 24 hours and correct the complaint within 15 days of receipt. There is an online complaints portal set up by the central government, which acts as a central repository for receiving and processing cases.
- Upon receiving a complaint from the complainant, the intermediary must remove it within 24 hours. Unregulated content shall include abusive material, complete or partial nude images, or sexual activity transmitted through them to harass, offend, or threaten others.
- In addition, it is required that foreign social media intermediaries must have an address in India.
2. Significant Social Media Intermediary Due Diligence– The intermediary must appoint the following persons:
- Chief Compliance Officer (CCO) -CCO must ensure compliance with the provisions of the law. The CCO will be responsible for performing due diligence and implementing further measures regarding third party information, content creators and online users. He would be a person holding a managerial position and must be a resident of India.
- Nodal Officer (NO) – He will stay in constant contact with law enforcement agencies. He also needs to ensure that the company strictly complies with the instructions and orders of the law. He must be an employee of the company and a resident of India.
- Resident Grievance Officer (RGO) – He needs to ensure that the intermediary adheres to due diligence on matters related to the grievance mechanism and that compliance reports are published monthly by major social media intermediaries. Complaints received from users and actions taken by intermediaries should be included in the report. It should also include the details of the link deleted by the intermediary after the complaint.
Further, intermediaries would need to implement artificial intelligence tools for automated filtering of complaints received by online users to filter of online content by an automatic algorithm. It shall be capable of identifying content that indicates any action or stimulus, express or implied, including rape, child sexual abuse, or action, or access to the same data as illegal content is blocked or removed by the intermediary.
The intermediary will notify online users when they access content that falls into a filtered category and should have several grievance mechanisms to address user complains. Tokens must be given to users so that they can track the status of their complaints. A government-level central repository is also formed where the intermediary must report the action taken in response to the complaint to the repository.
Users can also request regaining access to such information. Another important aspect of the IT Rules, 2021 is account validation by registered users. Users must verify their account and provide a valid mobile number. In this way, they can link their mobile number to their user account. Such confirmed accounts will be shown to other users as verified account.
3. News and Current Affairs Content Creators – The government has been granted access to the user account details of the news and current affairs publisher. Rule 7 mentions the inapplicability of safe harbor protection under Section 79 of Information Technology Act, 2000 if the intermediary fails to comply with Rule 14.
4. News Publisher in Digital Media – Through a three-tier complaint mechanism, news publisher in digital media are regulated. They are:
- Level 1: The issuer must comply with the rule itself. If not, the Grievance Officer will handle it.
- Level 2: If the Grievance Officer cannot resolve the content within 15 days, it will be referred to the self-regulatory body registered with the Ministry of Information Broadcasting. These agencies ensure that publishers comply with the Code of Ethics and address disputes that are not resolved within the specified 15 days. Such bodies must be chaired by a retired Supreme Court judge, a Supreme Court judge, or an independent eminent person and have no more than six members.
- Level 3: There is a monitoring mechanism established by the department to ensure that publishers comply with the Code of Ethics.
The Ministry shall appoint authorized officers who are not below the rank of joint secretary of the Central Government and such authorized representatives have the authority to delete or modify information. The ministry will also establish an inter-ministerial committee consisting of representatives from various ministries and experts in the subject area.
5. IT Rules, 2021 and OTT Platform – The new IT rules sets an age limit for access to OTT platforms such as Netflix, Hotstar and Disney by requiring to enable parental controls and age-appropriate locking. OTT platform are divided into following: U (universal), U/A 7+ (age group over 7 years old), U/A 13+ (age group over 13 years old), U/A 16+ (age group over 16 years old) and A (adult). The U/A 13+ and U/A 16+ have a child lock as an additional protection mechanism. It also requires a mechanism to determine the age of content that is classified as adult. The government requires the OTT platform to display a classification rating for each content or program.
Although the IT Rules, 2021 are a welcome change, they have their own set of flaws. The MEITY formulated IT Rules, 2021 without going through the legislative process. The legislators when making the IT Rules, 2021 never had public or expert consultation during the development and there was no active consultation with stakeholders. This flawed procedure of drafting is the main drawback in regulation of social media platforms, online news portals and video streaming platforms as it failed to grasp the reality of the users of these online platforms.
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