Context: For the first time, the government, under the ambit of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, has brought in detailed guidelines for digital content on both digital media and Over The Top (OTT) platforms, while giving itself overriding powers.

 

Emergency powers:

• The new rules lay down a three-tier grievance redressal mechanism.
• The government has equipped itself with “emergency” powers to block public access to any information.
• The rules state, “in case of emergency nature” the Secretary, Ministry of Information and Broadcasting, may “if he is satisfied that it is necessary or expedient and justifiable” give orders to block access.

 

Three level Mechanism:

• The first level of the grievance redressal system will be at the level of each OTT provider. Each complaint will have to be addressed within 15 days.
• If the complaint is not satisfactorily addressed, then the complainant can scale it up to a self-regulatory body collectively established by the OTTs. This body will be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or other relevant fields. This self-regulatory body also has “censuring” powers in case of any incriminating content.
• At the third tier, the government has equipped itself with overriding powers in the form of “oversight mechanism”. An inter-ministerial committee will perform this function and it will largely have the same powers as the collective self-regulatory body of the OTTs.

 

What is the background of these guidelines?

• At a press conference, Law & IT Minister Ravi Shankar Prasad cited a 2018 Supreme Court observation and a 2019 Supreme Court order, in addition to discussion in Rajya Sabha — once in 2018 and then through a report laid by a committee in 2020 — as the need for coming up with rules to “empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights”.

 

What are the key proposals that the guidelines make for social media?

• Section 79 of the Information Technology Act provides a “safe harbour” to intermediaries that host user-generated content, and exempts them from liability for the actions of users if they adhere to government-prescribed guidelines.
• The new guidelines notified prescribe an element of due diligence to be followed by the intermediary, failing which the safe harbour provisions would cease to apply to these platforms.
• They also prescribe a grievance redressal mechanism by mandating that the intermediaries, including social media platforms, should establish a mechanism for receiving and resolving complaints from users.

 

Do the guidelines lay the rules for removal of content from social media?

• In essence, the rules lay down 10 categories of content that the social media platform should not host.
• These include content that
• “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any foreign States”;
• “is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy; insulting or harassing on the basis of gender; libellous, racially or ethnically objectionable; relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws of India”, etc.

 

What does the due diligence entail for social media companies?

• In addition to appointing a grievance officer, social media platforms will now be required to appoint a chief compliance officer resident in India, who will be responsible for ensuring compliance with the rules.
• They will be required also to appoint a nodal contact person for 24×7 coordination with law enforcement agencies.
• Further, the platforms will 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 by the significant social media intermediary.

 

What are the penalties for companies violating these guidelines?

• In case an intermediary fails to observe the rules, it would lose the safe harbour, and will be liable for punishment “under any law for the time being in force including the provisions of the IT Act and the Indian Penal Code”.
• The penal provisions vary from imprisonment for three years to a maximum of seven years, with fines starting from Rs 2 lakh.
• Executives of intermediaries which fail to act on an order issued by the government citing threat to sovereignty or integrity, defence, security of the state or public order, can be jailed for up to a period of seven years under Section 69 of the IT Act.

 

What is the current law in India with regard to data privacy on the Internet, and for social media users?

• Although there are no specific provisions under the IT Act of 2000 that define privacy, or any penal provisions relating to privacy, some sections of the Act deal with very specific cases of data breaches and privacy.
• For example, Section 43A provides for compensation if an intermediary is negligent in using reasonable and good quality security and safety parameters, which can protect the data of their users and citizens.
• Though this section says that companies must use “reasonable security practices and procedures”, the same is not defined in very clear terms and can be interpreted in various ways.
• Section 72 of the IT Act has penal and imprisonment provisions if a government official in the course of his or her duty, gets access to certain information, and leaks it subsequently.
• Section 72A provides for criminal punishment if a service provider, during the course of providing the service or during the contract period, discloses personal information of the user without them being aware of it.

 

 

https://indianexpress.com/article/explained/social-media-digital-news-media-over-the-top-ott-content-providers-guidelines-7205053/

https://www.thehindu.com/todays-paper/govt-to-monitor-ott-content/article33937031.ece