IT Rules 2021 and analysis

• The Kerala High Court restrained the Centre from taking coercive action against Live Law Media Private Ltd., which owns a legal news portal, for not complying with Part III of the new IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
• The court issued notice to the Centre on a petition filed by the firm challenging the rules regulating digital news media, curated content (OTT platforms), and social media intermediaries.
• The petition said Part III of the rules imposed unconstitutional three-tier complaints and adjudication structure on publishers.
• This administrative regulation on digital news media would make it virtually impossible for small or medium-sized publishers, such as the petitioner, to function. It would have a chilling effect on such entities, the petition said.
• The creation of a grievance redressal mechanism, through a governmental oversight body (an inter-departmental committee constituted under Rule 14) amounted to excessive regulation, it contended.
• The petitioner pointed out that Rule 4(2), which makes it mandatory for every social media intermediary to enable the tracing of originators of information on its platform, purportedly in furtherance of Section 69 of the IT Act, violated Article 19(1)(a) (freedom of speech and expression).
• It also deprived the intermediaries of their “safe-harbour protections” under Section 79 of the IT Act.
• The petition also added that the rules obligating messaging intermediaries to alter their infrastructure to “fingerprint” each message on a mass scale for every user to trace the first originator was violative of the fundamental right to privacy of Internet users.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

• These new rules broadly deal with social media and over-the-top (OTT) platforms.
• These rules have been framed in exercise of powers under section 87 (2) of the Information Technology (IT) Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

Following are the features of the new rules

1. Categories of Social Media Intermediaries:

Based on the number of users, on the social media platform intermediaries have been divided in two groups:

1. Social media intermediaries.
2. Significant social media intermediaries.

2. Due Diligence to be Followed by Intermediaries:

• In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
• The safe harbour provisions have been defined under Section 79 of the IT Act, and protect social media intermediaries by giving them immunity from legal prosecution for any content posted on their platforms.

3. Grievance Redressal Mechanism is Mandatory:

• Intermediaries shall appoint a Grievance Officer to deal with complaints and share the name and contact details of such officers.
• Grievance Officer shall acknowledge the complaint within twenty four hours and resolve it within fifteen days from its receipt.

4. Ensuring Online Safety and Dignity of Users:

• Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation including morphed images etc.
• Such a complaint can be filed either by the individual or by any other person on his/her behalf.

5. Additional Due Diligence for the Significant Social Media Intermediaries:

• Appointments: Need to appoint Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer, all of whom should be resident in India.
• Compliance Report: 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.

6. Enabling Identity of the Originator:

• Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information.
• 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.

7. Removal of Unlawful Information:

• An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through authorized officer should not host or publish any information 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.

Rules for News Publishers and OTT Platforms and Digital Media:

For OTT:

• 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).
• Parental Lock: 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”.
• Display Rating: 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.

For Publishers of News on Digital Media :

• They 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 1995 thereby providing a level playing field between the offline (Print, TV) and digital media.

Grievance Redressal Mechanism:

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

1. Level-I: Self-regulation by the publishers;
2. Level-II: Self-regulation by the self-regulating bodies of the publishers;
3. 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 SC, 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 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.