A Bird’s Eye View on the Information Technology Rules 2021 [Mehul Solanki]



Background:

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. Some portals, which publish analysis about social media platforms and which have not been disputed, have reported the following numbers as user base of major social media platforms in India:

  • WhatsApp users: 53 Crore

  • YouTube users: 44.8 Crore

  • Facebook users: 41 Crore

  • Instagram users: 21 Crore

  • Twitter users: 1.75 Crore

These social platforms have enabled common Indians to show their creativity, ask questions, be informed and freely share their views, including criticism of the Government and its functionaries. The Government acknowledges and respects the right of every Indian to criticize and disagree as an essential element of democracy. India is the world’s largest open Internet society and the Government welcomes social media companies to operate in India, do business and also earn profits. However, they will have to be accountable to the Constitution and laws of India.

Introduction:

  • The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

  • The rules were finalised by the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting after elaborate consultations.

  • Part- II of these Rules shall be administered by the Ministry of Electronics and IT, while Part-III relating to Code of Ethics and procedure and safeguards in relation to digital media shall be administered by the Ministry of Information and Broadcasting.

  • Guidelines related to social media to be administered by Ministry of Electronics and IT are

  1. Due Diligence to Be Followed by Intermediaries

  2. Grievance Redressal Mechanism

  3. Ensuring Online Safety and Dignity of Users, Specially Women Users

  4. Two Categories of Social Media Intermediaries

  5. Voluntary User Verification Mechanism

  6. Giving Users an Opportunity to Be Heard

  • Digital Media Ethics Code relating to digital media and OTT platforms to be administered by Ministry of Information and Broadcasting include
  1. Code of Ethics for online news, OTT platforms and digital media.

  2. Self-Classification of Content.

  3. A three-level grievance redressal mechanism which includes Self-regulation by the publishers; Self-regulation by the self-regulating bodies of the publishers; Oversight mechanism.

THREE-TIER REDRESSAL MECHANISM:

The notified rules set out an elaborate time-bound three-tier process whereby each and every such grievance:

  • First handled at the level of the portal itself by its own grievance officer.

  • If not satisfactorily settled, it passes on to the self-regulatory body of the sector or industry.

  • If yet not resolved, moves further up to an inter-ministerial oversight committee of the central government.

GRIEVANCE REDRESSAL MECHANISM OF INTERMEDIARY:

  • The intermediary must ensure to prominently publish on its website, mobile based application, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it.

  • The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf in relation to any content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual, take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it.

SALIENT FEATURES:

Due diligence 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 Rules make a distinction between social media intermediaries and significant social media intermediaries to encourage innovations and enable growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirement.

Significant Social Media Intermediary should appoint a Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer who shall be a resident in India.

Code of Ethics for online news, OTT platforms and digital media: This Code of Ethics prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.

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).

  • 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”.

Case Study:

WhatsApp Has Moved to Delhi high Court to Challenge Traceability Provision in IT Rules 2021.

  • Rule 4(2) of the Intermediary Rules requires intermediaries to enable identification of the first originator of information on their platforms.

  • Failure to comply with this requirement would take away the indemnity provided to social media intermediaries under Section 79 of the IT Act.

  • Section 79 says that subject to a few conditions, an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him. It therefore grants them protection from legal liability that could arise from any action of users that is considered illegal.

  • According to the argument given, Rule 4(2) infringes upon the fundamental right to privacy without satisfying the three-part test set forth by the Supreme court in KS Puttaswamy vs Union of India on aspects of legality, necessity and proportionality.  

ACTIONS TAKEN BY SOCIAL MEDIA GIANTS UNDER IT RULES, 2021:

Facebook: In July, Facebook had published its first monthly compliance report and said that it took proactive action on 1.8 million pieces of content containing adult nudity and sexual activity.

Instagram: Instagram took action against 4.90 lakh pieces of content containing adult nudity or sexual activity. It also removed 6.68 lakh pieces that were violent and had graphic content.

Google: Google removed 71,132 pieces of content in May and took 83,613 removal actions in June following user complaints, the company said in its monthly transparency reports released on July 30. In addition to reports from users, Google also removed 6,34,357 pieces of content in May and 5,26,866 in June as a result of automated detection. The US-based company has made these disclosures as part of compliance with India's IT rules that came into force on May 26.

Twitter: In its maiden monthly compliance report titled 'India Transparency Report: User Grievances and Proactive Monitoring July 2021', Twitter said that it had received 94 grievances and taken actions against 133 URLs from May 26 to June 25.

Koo App: Koo App, meanwhile, said that it removed 1,253 posts of the 5,502 cases that were reported. "As Koo gains traction across India, we will ensure that Koo respects the law of the land and meets the requirements, enabling every country to define its own digital ecosystem. This Compliance Report is one step in that direction," said its CEO Aprayameya Radhakrishna.

STATUS OF WRIT PETITIONS FILED IN DIFFERENT HIGH COURTS (HC):

Bombay HC:

Senior journalist Nikhil Wagle has challenged the guidelines in the Bombay High Court and termed "them arbitrary, illegal and against the principle of net neutrality".

Karnataka HC:

Advocate Charita V has challenged the IT Rules, 2021 in the Karnataka High Court, seeking directions to the Centre to declare Rule 3 (1) (d) and Rule 7 of the IT Rules, 2021 as "ultra vires and unconstitutional". The court has issued notice to the Centre.

Madras HC:

The Digital News Publishers Association (DNPA) has also challenged the IT Rules, 2021 in the Madras High Court. The court has issued to notice to the Centre over the matter.

Delhi HC:

News agency PTI has also challenged the IT Rules, 2021 in the Delhi High Court. PTI has said that the Centre is attempting to regulate digital news media through the guidelines. Apart from PTI, lawyer Uday Bedi has also challenged the rules in the Delhi High Court. Bedi has claimed that the rules provide "sweeping powers" to social media intermediaries to voluntarily remove content based on complaints received.

Kerala HC:

The Kerala High Court has granted interim relief to News Broadcasters Association (NBA) after it challenged the IT Rules, 2021. The court has directed the Centre not to take any "coercive action" against them under the Centre's new Cable TV rules. Like NBA, Live Law has also challenged the acts in the Kerala High Court. It has claimed that the IT Rules, 2021 are violative of Articles 14 (right to equality), Article 19(a) (freedom of speech and expression), and 19(1)(g) (freedom to practice any profession or to carry on any occupation, trade or business).  

POSITIVES OF THE RULES:

The Rules must be credited for they mandate duties such as:

  • Removal of non-consensual intimate pictures within 24 hours,

  • Publication of compliance reports to increase transparency,

  • Setting up a dispute resolution mechanism for content removal,

  • Adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

NEW IT RULES CONCERNS:

Some of the concerns expressed about these new Rules are mentioned below-

  • Some people say that instead of soft-touch monitoring, the government has opted for predatory new rules.

  • The mandate that social media intermediaries should help authorities trace the first originator of contentious messages can be problematic, experts opine. Tracking the first originator would entail storing sensitive information or breaking end-to-end encryption protocol, moves that could weaken overall security. Here, the users’ right to privacy could be potentially violated. The issue gets even more complicated if the message originator is outside India.

  • While many lauds the steps to mitigate and penalise child sexual abuse online, some worry that the lack of nuanced automated tools to filter material could have a deleterious effect on free speech. 

WAY FORWARD:

Deliberating with Stakeholders: The solution to ongoing criticism about these rules is to start afresh with the publication of a white paper.

The white paper should clearly outline the harms that are sought to be addressed through regulation of online video streaming platforms and meaningful public consultation which is not limited to industry representatives.

Statutory Backing: After that, if regulation is still deemed to be necessary, then it must be implemented through legislation that is debated in Parliament instead of relying upon executive rule-making powers under Section 69A of the IT Act.

Expediting Data Protection Law: Making platforms share more information could prove counterproductive in a country where the citizens still do not have a data privacy law to guard themselves against excesses committed by any party.

In this context, there is a need to expedite the passing of the personal data protection bill, 2019.

CONCLUSION:

Regulation has an important place in a liberal democracy. However, given an environment where people are sensitive to content, the regulatory mechanism with a scope of strong government intervention could become an operational nightmare and hamper creativity & freedom of expression.

DISCLAIMER:

The entire contents of this article have been prepared based on relevant provisions and as per the information existing at the time of the preparation. Although care has been taken to ensure the accuracy, completeness and reliability of the information provided, we assume no responsibility therefore. Users of this information are expected to refer to the relevant existing provisions of applicable Laws. We assume no responsibility for the consequences of the use of such information. In no event shall we shall be liable for any direct, indirect, special or incidental damage resulting from, arising out of or in connection with the use of the information. This is only a knowledge sharing initiative and the author does not intend to solicit any business or profession. 

BIBLIOGRAPHY:

https://english.jagran.com/india/information-technology-rules-2021-what-are-new-it-rules-why-are-they-important-all-you-need-to-know-10030153

https://byjus.com/free-ias-prep/information-technology- 

ABOUT THE FIRM:

Jaya Sharma and Associates is a firm of Practicing Company Secretaries located in Mumbai, Maharashtra, India that specializes in solving the complexities of corporate laws and company secretarial practice promptly and correctly with an attention to detail and personal services catering to pan-India and foreign clients. The peer-reviewed firm specializes and adheres to the parameters of quality control systems and guidelines as prescribed by the regulatory body.

FCS Jaya Sharma-Singhania, Founder & Mentor has been listed as one of the Top Best Ten Women Legal Consultants in India 2021 by Women Entrepreneur Magazine.


Mehul Solanki
is a commerce and law graduate having more than four years of working experience in company law compliances, setting-up companies, compliances of listed companies and not-for-profit companies. He is currently Research Associate & Start-up Consultant at Jaya Sharma & Associates and has authored various articles on corporate and securities law-related topics which have been published on various websites, blogs and professional magazines including Compliance Calendar, Taxguru, Legal Service India and journal of ICSI etc.    

https://www.linkedin.com/in/mh9

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