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New IT Rules- Future Of Tech Giants In India


On the evening of 25th May 2021, the social media was filled with farewell messages and posts bidding farewell to it only, as these tech giants were going to stop working from midnight due to their non-acceptance of the new information and technology rules of the government of India Termed as Information Technology (Intermediary Guidelines and Digital Media Ethics code) Rules 2021. What are these rules, non-compliance of which led to this severe situation that no one can ever imagine in a democracy like India?


Information Technology (Intermediary Guidelines and Digital Media Ethics code) Rules 2021:


Guidelines Related to Social Media to Be Administered by Ministry of Electronics and IT:

  • Due Diligence To Be Followed By Intermediaries: The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.

  • Grievance Redressal Mechanism: The Rules seek to empower the users by mandating the intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving resolving complaints from the users or victims.

  • Ensuring Online Safety and Dignity of Users, Specially Women Users: Intermediaries shall remove or disable access withing 24 hours of receipt of complaints of contents which is objectionable.

  • Two Categories of Social Media Intermediaries: To encourage innovations and enable growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirement, the Rules make a distinction between social media intermediaries and significant social media intermediaries. This distinction is based on the number of users on the social media platform. The Rules require the significant social media intermediaries to follow certain additional due diligence.

  • Additional Due Diligence to Be Followed by Significant Social Media Intermediary:

  • Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules. Such a person should be a resident in India.

  • Appoint a Nodal Contact Person for 24x7 coordination with law enforcement agencies. Such a person shall be a resident in India.

  • Appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism.

  • Publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints.

  • Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years. Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.

  • Significant social media intermediary shall have a physical contact address in India published on its website or mobile app or both.

  • Voluntary User Verification Mechanism

  • Giving Users An Opportunity to Be Heard

  • Removal of Unlawful Information.


  • The Rules will come in effect from the date of their publication in the gazette, except for the additional due diligence for significant social media intermediaries, which shall come in effect 3 months after publication of these Rules. (INDIA, 2021).

But why these rules are required, especially when it's creating so hue and cry.

See we all are witnessing the fast-paced changes in technology but our laws are not compatible to match the pace of this change which results in the increase of crimes with no punishments as these people take the benefit of loopholes in our comparatively ancient laws. The last set of rules released on this issue was way back in 2011 and now compare this with the extent of technological changes that have taken place, the world has now moved from keypad phones to Smartphones that too very smart even in the category of smartphones. From 2g to 4g and now looking onto 5g. and we are still following the Information and Technology act of the 2000s the era of cathode ray tube computers.

This all reasoning is to satisfy an individuals point but what made our legislature and executive work for this issue. Chronology of the matter is like

  • The Supreme Court in suo-moto writ petition (Prajjawala case) vide order dated 11/12/2018 had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications.

  • The Supreme Court vide order dated 24/09/2019 had directed the Ministry of Electronics and Information Technology to apprise the timeline in respect of completing the process of notifying the new rules.

  • There was a Calling Attention Motion on the misuse of social media and spread of fake news in the Rajya Sabha and the Minister had conveyed to the house on 26/07/2018, the resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law. He had conveyed this after repeated demands from the Members of the Parliament to take corrective measures.

  • The Ad-hoc committee of the Rajya Sabha laid its report on 03/02/2020 after studying the alarming issue of pornography on social media and its effect on children and society as a whole and recommended for enabling identification of the first originator of such contents.

Consultations:

  • The Ministry of Electronics and Information Technology (MEITY) prepared draft Rules and invited public comments on 24/12/2018. MEITY received 171 comments from individuals, civil society, industry association and organizations. 80 counter comments to these comments were also received. These comments were analyzed in detail and an inter-ministerial meeting was also held and accordingly, these Rules have been finalized.

Reactions Of Different Social Media Giants:

Whatsapp:

WhatsApp has said that the new social media rules are unconstitutional and filed the case on May 25, incidentally it was also the last day for companies to comply with the new rules. The Facebook-owned messaging app is invoking the 2017 Justice K S Puttaswamy vs Union Of India judgment in support of its arguments.

WhatsApp wants the court to ensure the clause does not come into force, and prevent criminal liability to its employees for non compliance.

  • Traceability means End-to-End encryption won’t work.

  • Traceability means a lot of data collection

It says tracing even one message means tracing every single message on the platform and they will have to add some sort of “permanent identity stamp” or effectively ‘fingerprint’ each message. It says that this will be the equivalent of a mass surveillance program.

The Ministry of Electronics and Information Technology (MeITY)has called WhatsApp’s refusal to comply with the new IT rules a “clear act of defiance.” Further, it has said that the right to privacy will come with reasonable restrictions, adding that social media companies will only have to give the originator of a message in select cases and based on an order from a competent court.

The government also questioned WhatsApp’s commitment to user privacy pointing out that the company plans to “share the data of all its users with its parent company, Facebook, for marketing and advertising purposes.”


Google-

Google incorporation in its appeal in the honourable high court of Delhi presented that it’s a search engine, not a social media platform. Senior Advocate Harish Salve Presenting Google Incorporation stated that the new IT rules states that the social media platforms need to follow the guidelines but google is a search engine that is being misunderstood as a social media platform making it free from the ambit of these new IT rules. It challenged a single judge bench order where directions were issued against Google to remove the content. Mr salve contended in the court that this order should be stayed and Google cannot remove the content globally as what may be illegal and inappropriate in one country may not be so in other.


Digital Media Ethics Code Relating to Digital Media and OTT Platforms to Be Administered by Ministry of Information and Broadcasting:

There have been widespread concerns about issues relating to digital contents both on digital media and OTT platforms. Civil Society, film makers, political leaders including Chief Minister, trade organizations and associations have all voiced their concerns and highlighted the imperative need for an appropriate institutional mechanism. The Government also received many complaints from civil society and parents requesting interventions. There were many court proceedings in the Supreme Court and High Courts, where courts also urged the Government to take suitable measures.

Since the matter relates to digital platforms, therefore, a conscious decision was taken that issues relating to digital media and OTT and other creative programmes on Internet shall be administered by the Ministry of Information and Broadcasting but the overall architecture shall be under the Information Technology Act, which governs digital platforms.

Consultations:

Ministry of Information and Broadcasting held consultations in Delhi, Mumbai and Chennai over the last one and half years wherein OTT players have been urged to develop “self-regulatory mechanism”. The Government also studied the models in other countries including Singapore, Australia, EU and UK and has gathered that most of them either have an institutional mechanism to regulate digital content or are in the process of setting-up one.

The Rules establish a soft-touch self-regulatory architecture and a Code of Ethics and three tier grievance redressal mechanism for news publishers and OTT Platforms and digital media.

Notified under section 87 of Information Technology Act, these Rules empower the Ministry of Information and Broadcasting to implement Part-III of the Rules which prescribe the following:

  • Code of Ethicsfor online news, OTT platforms and digital media:This Code of Ethics prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.

  • Self-Classification of Content: The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”. The publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme enabling the user to make an informed decision, prior to watching the programme.

  • Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media.

  • A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.

  • 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: Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.

  • Self-Regulatory Body: There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. Such a body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not be been resolved by the publisher within 15 days.

  • Oversight Mechanism: Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.

These new IT rules may seem to have discrepancies and may face backlash from different media and tech giants but these are needed with the changing scenario and fast pacing technology.


References

INDIA, P. (2021, February 25). Press release. Retrieved from Press Information Bureau: https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749


https://economictimes.indiatimes.com/tech/trendspotting/explained-government-rules-on-whatsapp-the-controversy-around-it/articleshow/83035150.cms



-Vipul Agrawal


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