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India enters a new phase of speech regulation - 2021 IT rules
Read more on - Polity | Economy | Schemes | S&T | Environment
- An iron curtain: The central government has recently released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The guidelines apparently aim to "regulate social media, digital news media, and over-the-top (OTT) content providers".
- Why made: They were released following the instructions from the Supreme Court and the concerns raised in Parliament about social media abuse. Interestingly, in a hearing on similar matter on 05-03-2021, a SC judge further said that the guidelines weren't tough enough and govt. ought to tighten it by adding prosecution provisions! (this surprised experts who said that the SC had already closed any challenge to constitutionality of the said provisions by asking for tougher ones)
- What rules seek: They intend to "empower the ordinary users of digital platforms to seek redressal for their grievances", and "command accountability in case of infringement of users’ rights". The guidelines related to social media will be administered by the Ministry of Electronics and IT. The Digital Media Ethics Code relating to Digital Media and OTT Platforms will be administered by the Ministry of Information and Broadcasting.
- Why now: The government had been working on these guidelines for over 3 years, and the immediate push came in the form of the violent incidents at the Red Fort on January 26, 2021. Following this, the government and Twitter had disagreements over the removal of certain accounts from the social media platform.
- Key provisions on social media: Social media intermediaries are platforms that host user-generated content, e.g. Twitter, Facebook, YouTube, WhatsApp. The rules create two Categories of Social Media Intermediaries - (i) social media intermediaries, and (ii) significant social media intermediaries.
- This is to encourage innovations and enable growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirement.
- The distinction is based on the number of users on the social media platform.
- Government is empowered to notify the threshold of user base for these categories.
- The Rules require the ‘significant social media intermediaries’ to follow certain additional due diligence.
- Due diligence: The Section 79 of the IT Act provides a “safe harbour” to social media intermediaries. It exempts them from liability for the actions of users if they adhere to government-prescribed guidelines. The new guidelines prescribe an element of due diligence to be followed by the intermediary. Failing this would mean that their safe harbour provisions would cease to apply.
- Grievance redressal: The Rules mandates that the intermediaries, including social media platforms, should establish a mechanism for receiving and resolving complaints from users.
- These platforms will need to appoint a grievance officer to deal with such complaints. The officer must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt. In addition to a grievance officer, social media platforms will have to appoint a chief compliance officer resident in India.
- The chief compliance officer will be responsible for ensuring compliance with the rules. The platforms will also be required 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. This should have details of (i) complaints received and action taken on the complaints, (ii) contents removed proactively by the significant social media intermediary, etc.
- The due diligence requirements will come into effect after 3 months from the notification of the rules.
- Removal of content: 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, threatens friendly relations with foreign States, or public order causes incitement to the commission of any cognizable offence, prevents investigation of any offence, insults any foreign State, is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy insults or harasses on the basis of gender, is libellous, racially or ethnically objectionable, is relating to or encouraging money laundering or gambling, is otherwise inconsistent with or contrary to the laws of India, etc.
- Action taken: Court or the appropriate government agency may intimate the platform of hosting prohibited content. Upon receipt of such information, the platform should remove the said content within 36 hours.
- Penalties for violation - In case an intermediary fails to observe the rules, it would lose the safe harbour, and will be liable for punishment. This will be “under any law for the time being in force including the provisions of the IT Act and the Indian Penal Code”.
- The offences under the IT Act include, among others, - tampering with documents, hacking into computer systems, online misrepresentation, breach of confidentiality and privacy, publication of content for fraudulent purposes, etc.
- The penal provisions vary from imprisonment for 3 years to a maximum of 7 years, with fines starting from Rs 2 lakh.
- Key provisions on Digital Media and OTT Platforms: The Digital Media Ethics Code prescribes the guidelines to be followed by OTT platforms and online news and digital media entities.
- OTT services - For OTT service providers, the government has prescribed self-classification of content into five categories based on age suitability.
- U - Online curated content that is suitable for children and for people of all ages
- U/A 7+ - Content that is suitable for persons aged 7 years and above, and which can be viewed by a person under the age of 7 years with parental guidance
- U/A 13+ - Content that is suitable for persons aged 13 years and above, and can be viewed by a person under the age of 13 years with parental guidance
- U/A 16+ - Content which is suitable for persons aged 16 years and above, and can be viewed by a person under the age of 16 years with parental guidance
- A - Online curated content which is restricted to adults
- Platforms would be required to implement parental locks for content classified as U/A 13+ or higher. There also has to be reliable age verification mechanisms for content that is classified as “A”.
- News platforms - The 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.
- Summary: The Rules thereby provide a level playing field between the offline (Print, TV) and digital media.
- Grievance redressal mechanism - A three-level grievance redressal mechanism has been established 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 - The publisher shall appoint a Grievance Redressal Officer based in India. The officer shall take decision on every grievance received 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/High Court or an independent eminent person.
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