The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
The Government of India had framed the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
in February this year. These rules require the social media intermediaries/ platforms to adhere to a vastly tighter set of rules within three months, which ended on May 25.
Till now almost all major social media intermediaries have not adhered to all the requirements.
Guidelines Related to Social Media
- 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 acknowledge the complaint within twenty four hours and resolve it within fifteen days from its receipt.
- Ensuring Online Safety and Dignity of Users, Specially Women Users
- 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
- Additional Due Diligence to Be Followed by Significant Social Media Intermediary:
- Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance 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 shall 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.
- 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 or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years
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.
Issues With the Rules
- Rules Ultra-vires to the IT Act: It is of significant concern that the purview of the IT Act, 2000, has been expanded to bring digital news media under its regulatory ambit without legislative action.
- There has been criticism about bringing in a plethora of new rules that ought to be normally triggered only via legislative action.
- Depriving of Fair Recourse: An intermediary is now supposed to take down content within 36 hours upon receiving orders from the Government. This deprives the intermediary of a fair recourse in the event that it disagrees with the Government’s order due to a strict timeline.
- Undermining Free Speech: The rules place fetters upon free speech by fixing the Government as the ultimate adjudicator of objectionable speech online.
- Traceability Issue: Till now social media platforms have the immunity that users received from end-to-end encryption was that intermediaries did not have access to the contents of their messages.
- Imposing this mandatory requirement of traceability will break this immunity, thereby weakening the security of the privacy of these conversations. The threat here is not only one of privacy but to the extent of invasion and deprivation from a safe space.
- Counterproductive in Absence of Data Privacy Law: It 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.
- Uniform Application of Law: Regulation has an important place in the scheme of things, and no one advocates giving a free pass to digital platforms. Further, the laws to combat unlawful content are already in place. What is required is their uniform application.
- Deliberating with Stakeholders: There are indeed many problems with the new rules, but the major issue was that these were introduced without much public consultation.
- The solution to ongoing criticism about these rules is to start afresh with the publication of a white paper.
- Statutory Backing: Regulation must be implemented through legislation that is debated in Parliament instead of relying upon executive rule-making powers.
- 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
The Supreme Court in the case of Life Insurance Corporation of India vs Prof. Manubhai D. Shah (1992) had elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’.
In this context, five industry bodies, including the CII, FICCI and the U.S.-India Business Council have sought an extension of 6-12 months for compliance. This is an opportunity for the Government to hear out the industry, and also shed its high-handed way of rule-making.