ANALYSIS OF IT RULES, 2021

A brief overview

Today, social media is not just a mode of entertainment but is an arena for trade and commerce activities as well. It has now become the biggest source of information for the general public. It has also become a space for people to freely express their views and opinions. However, people may also use social media to stalk individuals, objectify women, invade privacy, transmit sexual content about children, etc. Given the high possibility of misuse of social media, the need for a robust complaint mechanism was felt. While social media platforms are supposed to work as intermediaries, they often adopt the role of publishers or editors of information, which in turn may give wrong or distorted information to the public. 

Therefore, the Ministry of Electronics and Information Technology (“MeitY”) recently released the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules (“IT Rules”). All social media and OTT platforms operating in India will have to mandatorily comply with the IT Rules, framed in exercise of powers under the Information Technology Act, 2000 (“IT Act”). 

Due diligence mandated by the IT Rules 

The IT Rules direct intermediaries to appoint a grievance redressal officer (“GRO”) to monitor content on the platform, respond to grievances, expedite processes to withdraw erotic content, make monthly compliance reports for Indian users, self-regulation mechanisms and follow an oversight mechanism created by MeitY. The GRO specially focuses on issues like protection of women and children from sexual offences and fake news. All social media platforms are required to publish these details on their apps and websites and explain to users the mechanism in place to make a complaint against any content on the platform.

The IT Rules mandate that these complaints need to be acknowledged within 24 hours of receipt and generally acted upon within a period of 15 days. The social media and digital media platforms are also required to immediately redress any government notices or court orders. Thus, the new IT Rules require much quicker responses to respond and resolve the complaints that are raised. The IT Rules require identification of the “first originator of the information” where a post involves or infringes the “sovereignty and integrity of India”. The IT Rules call for  the appointment of aChief Compliance Officer (“COO”) who shall be responsible for ensuring smooth compliance with the IT Act and Rules. A monthly compliance report is required to be maintained, which includes details of all the complaints received, complaints on which action has been taken, and the pending complaints. 

All OTT platforms and digital media entities are under an obligation to follow a well-established Code of Ethics. OTT platforms are to be named as ‘publishers of online curated content’ and are required to classify the content they publish into five different categories based on age and use parental locks for children above the age of 13 or more. They also need to include age verification mechanisms for content classified as ‘Adult’. The IT Rules also call for a set up of a three-level grievance redressal mechanism to regulate the Code of Ethics. It will include the appointment of a GRO, self-regulatory bodies registered with the Ministry of Information & Broadcasting (“MIB”), and a Charter for the self-regulating bodies formulated by MIB. 

Challenges to the IT Rules

The IT Rules have been challenged in various High Courts as being draconian and violating the right to freedom of speech and expression. Twitter, for example, has raised concerns of infringement of  free speech. Twitter argues that the IT Rules are in violation of principles of transparency and freedom of speech and expression under the rule of law. However the non-compliance of the rules will ultimately lead to the removal of the status of ‘intermediary’ of the companies and could also make them liable for penalty or punishment.

The Supreme Court in Tehseen Poonawalla v Union of India (WP(C)/754/2016) had directed the government to curb and stop dissemination of explosive messages and videos on various social media platforms which have a tendency to incite any sort of mob violence and lynching. The Supreme Court in 2017 observed that the government may frame necessary guidelines to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications. The government touts the new IT Rules as aiming to do just that and clarified that they permit social media platforms to operate freely but in accordance with law. Although Article 19 of the Constitution provides a right to freedom of speech and expression, these rights are not absolute and are subject to some reasonable restrictions, especially in case of a threat to the sovereignty, integrity, and security of the nation. However these words have not been defined and anything can be classified arbitrarily as violating the sovereignty of India.

Final comments

In the backdrop of these challenges, The fate of the IT Rules remains to be seen.

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