The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified on February 25, 2021. The rules have been notified under section 69(2), 79(2) (c) and 87 the IT Act, 2000. These rules will replace the IT (Intermediary guidelines) Rule, 2011.
These rules are for ‘Significant Social Media Intermediaries’ only, i.e. intermediaries having more than 50 lakh members. Intermediaries include internet or telecom services providers, online marketplace, and social media platforms. So, Whatsapp, Facebook, Twitter etc will be impacted from this.
What is the purpose of these rules?
Its aim is to provide a robust complaint mechanism for the users of social media & OTT (Over The Top) platforms to address their grievances. Emphasis has been given on the protection of women & children from sexual offences on social media. Online content publishers of social media intermediaries should follow the constitution of the country and subject themselves to our domestic laws. As per the PIB data, users on various platforms are Whatsapp - 53 Cr, Youtube - 44.8 Cr, FB-41 Cr, Instagram - 21 Cr, Twitter - 1.75 Cr.
How did the idea of these rules come?
In 2018, SC said - Indian government may frame necessary guidelines to eradicate child pornography, rape imageries, videos & sites in content hosting platforms. In 2020, an ad-hoc committee of the Rajya Sabha submitted its report on the issue of social media pornography and its effect on children and society as a whole. In 2020, the Governemnt also brought OTT platforms under the ambit of the Ministry of Information & Broadcasting, so these are not coming out of a thin layer; there have been many instances behind this.
What are the Guidelines?
According to extension of the clause, Intermediaries shall remove or disable access within 24 hours after receiving complaints of contents that exposes the private areas of individuals, shows such individuals in full or partial nudity or in sexual act as in the nature of impersonation including morphed images etc.
Here the problem arises because this word is very vague, it cannot be defined precisely.
Also there is an issue for companies to spend heavily on the logistics and staff behind this nodal grievance officer.
If Ministry of I&B finds any content objectionable, they can block the piece, site and stop publishing. But this is kind of censorship, this is also being compared to colonial rule, where you couldn’t publish anything against the ruling government, because government is watching every content and then permitting it.
Rules are there for everyone-
For Social media – They have to identify 'first originator of content that authorities consider anti-national. Appoint GRO and also have to file monthly report.
Digital News – They have to follow the norms of ‘Press Council of India’,’ Cable TV Network (Regulation) Act’. Also self-regulatory bodies will be there to oversee adherence to ‘Code of Ethics’. Ministry of I&B Ministry will form a panel for oversight mechanism.
OTT Platforms – platforms like Netflix, Amzon Prime etc have to classify content into five Categories U, U/A 7+ years, U/A 13+, U/A 16+ and A. and also parental locks for any content classified as U/A 13+ or above. Age verification mechanism should be there for content classified as "A".
What if they don’t follow the norms?
In case if 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 IT Act & protect social media intermediaries by giving them immunity from legal prosecution for any content posted on their platforms.
Recent Tussle between social media platforms & Government of India -
Twitter- Due to non-compliance with the norms, government snatched its status of an intermediary platform. It will be seen as a publisher of all contents of on platform. Twitter will open to lawsuits and legal proceedings for content. In response, Twitter appointed Dharmendra Chatur as interim GRO. (But he was not an employee and not on payroll of company (as law states), he was consultant at a law firm related to twitter. So, this appointment was flagged by MEITY (Ministry of Electronics and Information Technology). So, Chatur quit his post in less than 4 weeks. Later Paresh B Lal was appointed.
Whatapp- Whatapp has raised concerns over the clause of traceability. Whatsapp promises End to End Encryption, i.e. not to read its users’ messages.
Under Rule 4(2) of the guidelines, a social media intermediary could be required to trace an originator of a message or tweet or post as may required under a judicial order. This would be only for the purposes of preventing, investigation or punishment etc. of an offence related to sovereignty, integrity & security of India, incitement to an offence, public order, relating to rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for not less than 5 years. Delhi riots are said to be spread by whatsapp only.
So, for this, Whatapp will have to collect the messages of all its users by breaching right to privacy of users by breaking encryption. In K S Puttaswamy case, SC had uplifted the Right to Privacy as Fundamental Right.
On the other hand, Government called it ‘Act of Defiance’ and argued – “When Whatsapp is already sharing all its data with the facebook,( that’s why we see suggestions of products we need but actually we never searched them) then why whatsapp is showing this duality?
Also government says that -Right to Privacy has some reasonable restrictions. If it is by a legislative action, for legitimate state purpose, and in proportion, it can be breached.
So conclusively, now government has come in strict mode that multi-national companies have to want to stay in India, they must abide by the domestic laws of India.