The government under the ambit of Sec 89 of the IT act 2000 has proposed the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 on Feb’ 2021 which will replace the old 2011 IT Rules. It is of the opinion that the proposed changes will help in establishing the Rule of Law and also abiding with the Constitution of India.
The Question which ponders us is what was the need for such changes?
So, in the year 2018, the SC observed that GOI must come with guidelines to eliminate the child pornography, rape, and gang rape imaginaries in the site of the content hosting platforms. Following in 2020 an Adhoc committee laid down its report on the alarming issue of pornography on social media and its effect on children and the society in large and further recommended for the identification of the first originator of such contents.
Changes which has been introduced :
The social media platform is divided into two parts: Social media intermediaries and Significant Social media Intermediaries.
Social Media Intermediaries: The new IT Rules, 2021, define a social media intermediary as an entity that primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.
Significant Social media Intermediaries: Social Media Intermediaries with more than 50 lakh registered users are under this category.
Some common rules have been framed for the above 2 categories of platforms, however, an additional guideline has also been brought up for the Significant Social media Intermediary.
It is mandated that Due Diligence has to be followed by the intermediaries and if it is found that the same has been violated then the safe harbors provided to these intermediaries under Sec 79 of the IT Act will not apply to them.Also , we can see that the grievance redressal mechanism is mandatory to be set up by these intermediaries which will include an appointment of the Grievance Officer who have to acknowledge the complaint within 24 hours and resolve the same within 15 days from its receipt.
In order to ensure the Online safety of the users, the intermediaries have to act on the complaint filed by any individual or by any other person on their behalf to be acted upon immediately and the same should be removed or access is denied within 24 hours of receipt of such complaints.
Additional Due Diligence for the Significant Social Media Intermediaries:
It should appoint a Chief Compliance Officer, a Nodal Officer, and a Resident Grievance Officer, all should be a resident of India. Further, they also have to publish a monthly compliance report which should mention the details of the complaints received and the respective action taken.
Further to this it also has to enable the identification of the originator of the information, this has been a major criticism and Whatsapp has been seen moving to court because we have chats in the WhatsApp encrypted end to end and compliance with this rule is seen by many as denial of the Fundamental Right of Right to privacy.
The rule has also asked for the removal of the Unlawful Information i.e it should not publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India.
A set of rules has also been framed for the OTT platforms and the Digital Media, i.e now the OTT platforms have to self classify the content under the different age-based categories like U (Universal), U/A 7+, U/A 13+, U/A 16+ and A(Adult). The categories of U/A 13 or higher platforms are required to implement the parental lock systems and the age verification mechanism for the “A” category content.In order to provide a level playing field between offline and online media, it is required that the Digital media should abide by the Journalistic Conduct of the press Council oF India and the Cable Television Network Regulation Act 1995.
A Three-level Grievance redressal mechanism is to be set up with the different levels of self-regulation and the officer should address the grievance received within 15 days along with this a self-regulatory body needs to be set up which will oversee the adherence by the publisher to the cOde of Ethics and Address the Grievances which are not resolved within 15 days. The Ministry of Information and Broadcasting will formulate the oversight mechanism.
Criticism to the New Laws:
Although the proposed Rules will ensure Compliance to the Domestic laws and will help in fixing accountability along with timely removal of the content. Many have argued that the idea of the identification of the originator of the news is an entrenchment of the Fundamental right of the citizen as it will curb the Right to Privacy because it will break the encryption clause. Also, it has been highlighted that the rule to remove the content which seems to be an attack on the sovereignty and integrity of India has been seen by many as an idea that is against free expression.
Though many of the Social Media giants have agreed to follow the set guidelines few have been seen objecting to the rules and some are seeking clarifications.