Amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)

Disclaimer: Copyright infringement not intended.

Context

• The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021).

Background

• World over, governments are grappling with the issue of regulating social media intermediaries (SMIs). A social media intermediary as an intermediary which primarily or solely enables interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.
• SMIs play a central role in shaping public discourse. It has impact on governance and on the right to freedom of speech and expression. The magnitude of information SMIs host it is important for governments to regulate them.
• In a bid to keep up with these issues, India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021. It primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.

KEY FEATURES

• Due diligence by intermediaries:  Under the IT Act, an SMI is not liable for the third-party information that it holds or transmits.  However, to claim such exemption, it must adhere to the due diligence requirements. According to 2011 Rules the requirements included: (i) specifying, in service agreements, the categories of content that users are not allowed to upload or share, (ii) taking down content within 36 hours of receiving a court or government order, (iii) assisting law enforcement agencies, (iv) retaining blocked content and associated records for 90 days, and (v) providing a grievance redressal mechanism for users and affected persons, and designating a grievance officer.  The 2021 Rules retain these requirements, while: (i) modifying the categories of content that users are not allowed to upload or share, and (ii) prescribing stricter timelines for the above requirements.
• Personnel:An SSMI must appoint: (i) a chief compliance officer for ensuring compliance with the Rules and the Act, (ii) a nodal person for coordination with law enforcement agencies, and (iii) a grievance officer, all of whom should reside in India.
• Identifying the first originator of information: An SSMI, which primarily provides messaging services, must enable the identification of the first originator of information within India on its platform.  This may be required by an order of a Court or the competent authority under the IT Act.   Such orders will be issued on specified grounds including prevention, detection, and investigation of certain offences such as those relating to national security, public order, and sexual violence.  
• Technology-based measures:  SSMIs will endeavour to deploy technology-based measures to identify: (i) content depicting child sexual abuse and rape, or (ii) information that is identical to the information previously blocked upon a court or government order.  Such measures: (i) must be proportionate to interests of free speech and privacy of users, and (ii) have a human oversight and be reviewed periodically.
• User-centric requirements:SSMIs must provide users with: (i) a voluntary identity verification mechanism, (ii) a mechanism to check the status of grievances, (iii) an explanation if no action is taken on a complaint, and (iv) a notice where the SSMI blocks the user’s content on its own accord, with a dispute resolution mechanism.

• Digital Media Publishers: The 2021 Rules prescribe certain requirements for online publishers of: (i) news and current affairs content which include online papers, news portals, aggregators and agencies; and (ii) curated audio-visual content.  The Rules institute a three-tier structure for regulating these publishers: (i) self-regulation by publishers, (ii) self-regulation by associations of publishers, and (iii) oversight by the central government.
• Code of Ethics: For publishers of news and current affairs, the following existing codes will apply: (i) norms of journalistic conduct formulated by the Press Council of India, and (ii) programme code under the Cable Television Networks Regulation Act, 1995.  For online publishers of curated content, the Rules prescribe the code of ethics.  This code requires the publishers to: (i) classify content in specified age-appropriate categories, restrict access of age-inappropriate content by children, and implement an age verification mechanism, (ii) exercise due discretion in featuring content affecting the sovereignty and integrity of India, national security, and likely to disturb public order, (iii) consider India’s multiple races and religions before featuring their beliefs and practices, and (iv) make content more accessible to disabled persons.
• Grievance redressal: Any person aggrieved by the content of a publisher may file a complaint with the publisher, who must address it within 15 days.   The complaint will be considered by an inter-departmental committee constituted by the Ministry of Information and Broadcasting if: (i) further escalated by the complainant or the association under certain conditions, or (ii) referred by the Ministry itself.  
• Oversight by Ministry: The Ministry of Information and Broadcasting will: (i) publish a charter for self-regulating bodies, including Codes of Practices, (ii) issue appropriate advisories and orders to publishers; (iii) have powers to block content on an emergency basis.  Any directions for blocking content will be reviewed by a committee headed by the Cabinet Secretary.

Key Issues and Analysis

• The Rules may be going beyond the powers delegated under the Act in certain cases, such as where they provide for the regulation of significant social media intermediaries and online publishers, and require certain intermediaries to identify the first originator of the information.
• Grounds for restricting online content are overbroad and may affect freedom of speech.
• There are no procedural safeguards for requests by law enforcement agencies for information under the possession of intermediaries.
• Requiring messaging services to enable the identification of the first originator of information on its platform may adversely affect the privacy of individuals.

What was the need to amend the IT Rules, 2021?

The stated objectives of the amendments were three-fold.

1. First, there was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms.
2. Second, to strengthen the grievance redressal framework in the Rules, and
3. Third, that compliance with these should not impact early-stage Indian start-ups.

Additional obligations placed on the SMIs through the recent amendment

• First, the original IT Rules, 2021 obligated the SMIs to merely inform its users of the “rules and regulations, privacy policy and user agreement” that governed its platforms along with the categories of content that users are prohibited from hosting, displaying, sharing etc. on the platform. This obligation on the SMIs has now been extended to ensuring that its users are in compliance with the relevant rules of the platform.
• Further, SMIs are required to “make reasonable” efforts to prevent prohibited content being hosted on its platform by the users. To a large extent, this enhances the responsibility and power of SMIs to police and moderate content on their platforms.
• It has newly introduced an obligation on SMIs to “respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21”.
• SMIs are now obligated to remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises. They have to remove such information within 72 hours of the complaint being made. Given the virality with which content spreads, this is an important step to contain the spread of the content.
• Lastly, SMIs have been obligated to “take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency”. The obligation is meant to strengthen inclusion in the SMI ecosystem such as allowing for participation by persons with disabilities and diverse linguistic backgrounds. In this context, the amendments also mandate that “rules and regulations, privacy policy and user agreement” of the platform should be made available in all languages listed in the eighth schedule of the Constitution.

Concerns

• Users are apprehensive that the increased power of the SMIs would allow them to trample on freedom of speech and expression.
• Frequent alterations to design and practices of SMI platform, to meet obligations could result in heavy compliance costs for SMIs.
• Creation of Grievance Appellate Committees (GAC) makes the in-house grievance redressal more accountable and appellate mechanism more accessible to users. But appointments being made by the central government could lead to apprehensions of bias in content moderation.
• The Rule says, the institution of the GAC would not bar the user from approaching the court directly against the order of the grievance officer. If users can approach both the courts and the GAC parallelly, it could lead to conflicting decisions often undermining the impartiality and merit of one institution or the other.

Final Thought

• Given the importance of SMIs in public discourse and the implications of their actions on the fundamental rights of citizens, the horizontal application of fundamental rights is laudable.
• Any other concern needs to be addressed through multistakeholder consultation and consensus building.

https://www.thehindu.com/sci-tech/technology/explained-the-amendments-to-the-it-rules-2021/article66079214.ece