INFORMATION TECHNOLOGY RULES 2021

WHY IN NEWS:

• The Centre Government on 25^th Feb 2021 notified ‘Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021’ that seek to regulate content on digital media

ABOUT THE RULES:

• These new rules broadly deal with social media sites, messaging apps, over-the-top (OTT) streaming services, and digital news publishers
• These rules have been framed in exercise of powers under the section 87 (2) and 69 A of the Information Technology (IT) Act, 2000
• The new guidelines not only replace the Information Technology (Intermediaries Guidelines) Rules, 2011, but also regulate digital news publishers and streaming services, which was not the case earlier

NEED FOR SUCH GUIDELINES:

• Threat to public order and social harmony:
  • There are many controversies involving content on over-the-top platforms. In one such recent incident, a case was filed against the makers of the web series ‘Tandav’ for hurting religious sentiments.
• Increasing reach of digital media:
  • Ability of digital/social Media to reach, scale and size is huge compare to print and other media >> increases the need for regulating such platform
• Threat of misinformation:
  • India has seen a surge in the number of fake news items in circulation, especially on WhatsApp and Face book.
  • There were several instances of mob violence and lynching based on such fake news
• To hold digital news media accountable:
  • Print media are required to observe Norms of Journalistic Conduct of the Press Council of India. But digital media does not have such obligations till now.
• Lack of level playing field:
  • Video streaming services such as Netflix and Amazon Prime have multiplied their subscribers in India in recent years.
  • But they do not have to get through the certification process of the Central Board of Film Certification
• Threat from external state and non-state actors:
  • When India is in conflict with its neighbouring countries like China and Pakistan, there is a possibility of foreign-funded digital platforms running to defame our country.
• Undue influence on our elections:
  • There also evidence of fake information influencing the process of election which undermines the root of democracy.
• Tussle between social media and government:
  • There has also been a face-off between the government and Twitter in recent weeks over the social media platform’s non-compliance with its order to block several hashtags and handles of journalists, activists and politicians in the backdrop of the ongoing farmers’ protests

SALIENT FEATURES OF THE RULE:

• Guidelines for social media/intermediaries:
  • 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 (Whatsapp, Facebook etc.)
  • Dilution of safe harbour provisions under IT act:
    • 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:
    • Intermediaries shall appoint a Grievance Officer to deal with complaints
    • Grievance Officer shall acknowledge the complaint within twenty four hours and resolve it within fifteen days from its receipt.
  • Ensuring 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’:
    • Need to appoint Chief Compliance Officer: who will have to ensure that the rules are followed
    • Need to appoint a nodal contact person: For 24x7 coordination with law enforcement agencies.
    • 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.
  • 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 OTT Platforms:
  • Categorization 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:
    • OTT platforms shall display rating specific to each content to enable the user to make an informed decision, prior to watching the programme.
• Rules for Digital News Publishers
  • Providing a level playing field:
    • Digital new media 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:
      • 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.
    • Level-II - Self-regulation by the self-regulating bodies of the publishers:
      • 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.
    • Level-III - 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 ASSOICATED WITH THE RULES:

• It is an executive overreach over citizens' right:
  • These rules will give the government a good deal of leverage over online news publishers and intermediaries.
  • Moreover the purview of the IT Act, 2000, has been expanded to bring digital news media under its regulatory ambit without legislative action
• Lack of consultation in framing rules:
  • There are severe criticism for bringing in rules to govern the digital media without any consultations with the digital news portals
• Burdens the judiciary:
  • Implementation of these rules results in increased litigation against digital media houses and platforms >> huge inflow of cases to the judiciary which is already overburdened.
• Against Article 19:
  • Guidelines have a troubling implications for freedom of expression, curbing creativity and right to information
  • Guidelines undermine the enabling provisions of Article 19 of the Constitution and weaponise the restrictive clause of reasonable restriction
• Undermine the principles of open  Internet:
  • These guidelines could undermine the principles of open and accessible Internet
• Violate right to privacy:
  • This may violate the right to privacy and free speech of users, particularly in the absence of robust data protection law
• Erosion of the ‘safe harbour’ protection given to intermediaries under Section 79 of the IT Act.
  • The cornerstone of our digital freedoms is ‘safe harbour’
  • If the section 79 of the IT Act is diluted, it could also lead to censorship by intermediaries
• Need to break end to end encyption policy:
  • Tracing the originator of content would not be possible without breaking end-to-end encryption
• Non-transparent:
  • These rules pave the way for more opacity and secrecy rather than transparency and accountability.
• Wider impact:
  • As the digital new media is increasingly becoming a prime source of news and views.
• Increased compliance burden:
  • New rules have increased the compliance burden for social media platforms >> decrease ease of doing business >> adversely affect the investment climate

WAY FORWARD:

• Increase the corporate responsibility of social media companies:
  • All digital media companies should publish transparency reports voluntarily taking inspiration from Facebook
• Generating public awareness:
  • Government should focus on digital literacy programmes along with Digital India Mission
• Responsible citizens:
  • People should understand that freedom in social or digital media should complement with responsibilities envisaged in the Fundamental Duties.
• A soft-touch oversight mechanism instead of predatory rules:
  • Government should work on more progressive and liberal rules, which at the same time address people’s varied concerns while removing any misapprehension about curbing creativity and freedom of speech and expression
• Space for self-regulation:
  • Both online and offline media should be given the space to self-regulate, based on the mature understanding that any government presence could have a chilling effect on free speech

PRACTICE QUESTION:

Q. Examine the challenges associated with bringing the digital media under the regulatory ambit of the government?