ANALYSIS OF “THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021”
From the beginning of 21st Century, the world began to experience the technological advancements in every field, be it new communication mediums or digital technology. The technological development enhanced the lives of people. The documents or traditional papers were replaced by computer and electronic resources.
As new changes or development comes in the society, it always comes with positive and negative impacts. And even technological advancements in the society brought so many challenges with it like cyber-crimes, data security threat, privacy threat and even threat to the national security of the country.
To combat with these challenges effectively, we needed law that would govern and regulate every aspects of electronic commerce.
Then the Information Technology Act, 2002 came into force. This act came into force on October 17, 2002, it aims to regulate the cyber offences and e- commerce.
The paradigm of digital media has widened its scope, and amid the lockdown and pandemic, it enabled to take millions of users under its ambit. Thus, new challenges occurred especially relating threat to data security and privacy laws.
However, there is only one legislation in India, which deals with the internet world but that to in very limited aspects, as there are many problems which are not under the scope of IT Act 2002.
It was high time to review our rules and regulations that dealt with the digital platforms, as we know law must be dynamic and it must keep changing as per the needs of the society and new developments therein.
On February 25, 2021, the “Ministry of Electronics and Information Technology” (“MEITY”) and the “Ministry of Information and Broadcasting” (“MIB”), “Government of India” enacted the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter IT Rules, 2021).”
Adverting to the new IT Rules, 2021, the Government issued an official statement stating the objects and reasons of the Rules:
“Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.”
So, the new IT Rules, 2021, will be regulating all types of digital platforms.
In April, 2018, the MIB formed a 10-member committee for making detailed report on recommendations and suggestions for the regulatory framework of the Social Media platforms, digital media, OTT(Over-the-Top) platforms, including online news publishers etc. However, the committee disbanded in July, 2018 and it was overseen by the panel of MEITY.
But on November 19, 2021, a notification under Article 77(3) of the Constitution was issued by President of India, amending the “Government of India (Allocation of Business) Rules, 1961” which granted MIB the power to regulate online news platforms and OTT platforms.
Since then, the MEITY and MIB decided to draft the OTT regulation and Code of Ethics for Digital Media along with intermediary Guidelines Rules, and it was finally released on February 25, 2021 on the official Gazette of MEITY and MIB.
For framing the new Rules, the Government has referred to the Prajjawala Case, 2018, in which the Apex Court advised the Central Government to frame rules and regulations to prevent the crimes of child pornography, rape and gangrape imageries, videos and sites that are spread over the digital platforms.
OBJECTS AND REASONS
Rapid increase in use of social media, empowers the citizens but on the other side trap them in the hands of cyber criminals, thus causing serious concerns and consequences. These concerns have been raised and deliberated in the Parliament, committees, civil society etc from time to time. There has been persistent spread of fake news all over the social media, which many times led to chaos and misled the public. Using social media rampantly to outrage the dignity of women by sharing their morphed images on internet. Rampant misuse of social media has brought new challenges to enforcement agencies. Till now, India did not have any complaint mechanism, where the users of social media could address their grievances.
Thus, to tackle with these serious issues and to regulate the OTT and digital media platforms, to prevent the cyber offences and to combat with individual’s privacy and national security concerns, the present IT Rules, 2021 were enacted and enforced immediately.
Hence, the new IT Rules, 2021 provides for the compliance of law by the digital platforms and establishment of grievance redressal mechanism of the victims.
KEY FEATURES OF THE NEW IT RULES, 2021
Now, we will be throwing light on some of the salient features of the IT Rules, 2021: -
Social Media guidelines to be administered by MEITY
Grievance Redressal Mechanism- The Rules mandate the intermediaries, including social media intermediaries to establish a grievance redressal mechanism to resolve the complaints of users or victims; a grievance officer will be appointed for the same. Complaints must be acknowledged within 24 hours and disposed of within 15 days.
Ensuring the online safety and dignity of users, especially women users by removing or disabling the access within 24 hours of receipt of complaints of contents that include private areas, or nudity or morphed images of the victim.”
The IT Rules, 2021 has categorised the social media intermediaries under two categories on the basis of number of users, so that every social media, OTT platforms, news platforms will be subjected to significant compliance requirement. Categories are as follows-
Social Media Intermediaries (less than 50 lakhs of registered users)
Significant Social Media Intermediaries (more than 50 lakhs of registered users)
Removal of Unlawful Information- The Intermediaries must not host or publish any such information or content when notified or given order by the Appropriate Government, which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.
Digital Media Ethics Code Relating to Digital Media and OTT Platforms to be administered by MIB
The matter relating to digital platforms, digital media, OTT and other creative programmes on Internet will be administered by the MIB, however overall aspects will be under the Information Technology Act, 2002 which governs the Digital Platforms.
The new Rules provide for self- regulatory mechanisms for the digital media and also seeks to establish three tier grievance redressal mechanisms for the OTT, news publishers, and digital media platforms.
Code of Ethics for News Publishers, OTT and Digital Media Platforms-
For News and Current Affairs Publishers, the following existing Code of Ethics will apply to them-
norms of journalistic conduct formulated by the Press Council of India,
programme code under the Cable Television Networks Regulation Act, 1995.””
Whereas, for the OTT Platforms following codes are to be followed-
Self-Classification Content- The OTT Platforms, publishing online curated content, must self- classify the content into five aged based categories as “U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).”
Implementing parental locks for content classifying as U/A 13+ or higher.
Reliable age verification mechanisms for content classified as “A”.
Improving accessibility of content for disabled persons.
Displaying the classification rating and content description at the beginning of every programme.
A Three- level grievance redressal mechanism-
Level-I: Self-regulation by the publishers;
Level-II: Self-regulation by the self-regulating bodies of the publishers;
Level-III: Oversight mechanism.””
Self-regulation by the Publisher-
Appointment of Grievance Redressal Officer.
The Officer to look after the grievances of the users.
The officer to resolve the received grievances within 15 days of its registration.
One or more self-regulatory bodies of publishers may be formed.
The body will comprise of not more than six members including a retired judge of the Supreme Court, a High Court or independent eminent person.
Registration of such body under the Ministry of Information and Broadcasting is mandatory.
This body will look after the compliance of the Code of Ethics by the publishers and will address those grievances which could not be resolved by the publisher within 15 days.
Oversight mechanism will be formulated by the “Ministry of Information and Broadcasting.”
MIB will be publishing a charter self-regulating bodies, including Codes of Practices.
Inter-Departmental Committee for hearing grievances will be established and it will be the Apex body for grievance redressal mechanism.
The above-mentioned are the main salient features of the new IT Rules, 2021.
However, after the press release of the new IT Rules, 2021, it has been criticised by the news publishers, digital media publishers etc, on the ground that the new rules are contrary to constitutional framework and arbitrary in nature.
Let us discuss some of the main issues or the loopholes of this new Rules which are threatening to the Individual’s privacy and digital rights of millions of users.
Firstly, the New IT Rules, 2021 was released without any public consultations and without any parliamentary scrutiny, hence proper legislation procedure was not followed while framing these rules.
Secondly, the New Rules issued under the IT Act, 2002, seems unconstitutional as it was done by expanding the purview of the IT Act, 2002, without taking any legislative route.
Thirdly, as we know delegated legislation is limited and legislature cannot transfer its essential power of law making to the executive. The executive is required to frame the rules according to the provisions of the parent act, guidelines provided by the legislature. However, these rules were framed in absence of parliamentary scrutiny and wide powers have been exercised by the executive which ultra vires the parent act.
Fourthly, the IT Act, 2002 do not cover the digital news media or current affairs publishers, however the new rules have made even them to come under their scrutiny; thus, again framing rules beyond the preview of the parent act. Regulating digital news media would have a chilling effect on their free speech and conversations.
Fifthly, the new rules giving arbitrary powers to the Secretary of “Ministry of Information and Broadcasting”, to block any content the government considers problematic even without due process, which is clearly the violation of freedom of speech and expression.
Sixthly, the rules provide the provision for traceability of the first originator which is practically difficult as the messages of apps like WhatsApp and Signal are encrypted end-to-end, thus it will not be easy to trace the first originator. Hence, these rules are over burdening the social media through its strict and rigid regulations.
The following measures need to be taken by the government to improvise the new Rules, as still it is not sufficient or effective to regulate the digital world.
The solution to ongoing criticism about these rules is to start afresh with the publication of a white paper.
Statutory backing is required, parliamentary discussions and following the required legislative route in framing rules and regulations.
Some strict policy measures are needed, as the new rule specify the grievance redressal mechanism cannot solve these problems.
Passing of the Personal Data Protection Bill, 2019 will definitely curb the ongoing problems of privacy threats and in some manner will supplement the new Rules as well.
The new IT Rules, 2021 seeks to regulate the digital media and OTT platforms etc. On release of these rules, Government stated that these rules will be preventive measures to curb the cyber offences, and resolving the grievances of the users. But, the regulatory mechanism with a scope of strong government intervention could become an operational nightmare and hamper creativity & freedom of expression. However, the objects specified by the IT rules, 2021 seems non achievable as it lacks legislative backing, and over regulation of the digital media publishers for storing the data of online users will be threat to privacy of the individual. As, we all know India still do not Data Security Law, which is still pending in the legislature. The need of the hour is to pass the Personal Data Protection Bill, 2019 as soon as possible, then to some extent the objectives of the new IT Rules, 2021, will be achievable.
The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
The Information Technology Act, 2002
Written by- Sakshi Vishwakarma,
4th year, B.A. LL. B(Hons)
Delhi Metropolitan Education