The Government of India through the Ministry of Electronics and Information Technology by exercising its power under Section 87(2)(1)(z) and (zg) of the Information Technology Act, 2000, notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules, 2021”) on 25th February 2021. The Intermediary Rules, 2021 supersede the Information Technology (Intermediaries Guidelines) Rules, 2011.
The Intermediary Rules, 2021 touch upon inter alia several issues such as fake news, deep fakes, blocking objectionable online content, online intellectual property violation, online defamation, OTT platform content regulation, and so on.
Salient feature of the Intermediary Rules, 2021 are set out hereunder.
- Social media platforms have been categorized into two, namely, Social Media Intermediaries and Significant Social Media Intermediaries.
- The long list of due diligence to be observed by all Intermediaries while discharging their duties are notified under Rule 3 of the Intermediary Rules, 2021. If such due diligence is not observed, and generally for non-observance of the Intermediary Rules, as applicable, safe harbor provisions under Section 79 of the Information Technology Act, 2001 shall not be available.
- All Intermediaries are required to appoint Grievance Officers to deal with complaints made by users or victims. The names and contact details of such Grievance Officers must be prominently displayed in the website or mobile application of such Intermediary. Complaints must be acknowledged within 24 hours and resolved within 15 days by the Grievance Officer. Additional due diligence must be observed by Significant Social Media Intermediaries, which include inter alia the following:
- Appointment of a Chief Compliance Officer (key managerial person or senior employee who is liable for lack of due diligence), Nodal Contact Person (for dealing with law enforcement) and Resident Grievance Officer.
- Publication of a monthly compliance report mentioning details of complaints received and action taken on complaints and details of content removed.
- Significant Social Media Intermediaries that provide services in the nature of messaging shall enable identification of first originator of such information as may be required by a court order or passed by the Competent Authority under Section 69 of the IT Act. Such orders can only be passed for 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, which is punishable with imprisonment for a term of not less than five years.
- All Intermediaries are required to take reasonable measures to remove or disable access to content which is prima facie in the nature of material which exposes private areas of individuals, shows such individual in full or partial nudity, or shows such individual in sexual acts or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual.
Special Rules for Publishers of News and Current Affairs and OTT Platforms
- With respect to publishers of news and current affairs content, each Intermediary is required to inform such publishers that their user account details must be furnished to the Ministry of Information and Broadcasting as may be required under Rule 18 of the Intermediary Rules, 2021.
- Special rules have been framed for publishers of news and current affairs and of online curated content (OTT platforms) and these shall be administered by the Ministry of Information and Broadcasting.
- Publishers of news and current affairs must observe norms of Journalistic Conduct of the Press Council of India and the Programme Code under Section 5 of the Cable TV Regulation Act.
- OTT platforms shall classify content into categories such as U, U/A 7+, U/A 13+, U/A 16+ and A.
- OTT platforms are required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as A.
- OTT platforms shall also display classification rating to each content or program together with content descriptor informing user about nature of content and advising on viewer description at the beginning of every program enabling user to make an informed decision.
Grievance Redressal Mechanism
- A three-level grievance redressal mechanism has been introduced.
- Level 1 is a self-regulation by publishers where a publisher appoints a Grievance Officer who resolves a grievance within 15 days. If the grievance is not resolved within 15 days, or the complainant wishes to appeal, then in that event the complainant can approach Level II.
- Level II is a self-regulation by a body of which the publisher is a member. The Rules permit the formation of one or more self-regulatory bodies of publishers which is headed by up to six members and which include a retired Supreme Court judge, or High Court judge or such other eminent persons. Such body must be registered with Ministry of Information and Broadcasting. Such body must oversee adherence by publisher to the code of ethics and address grievances. A further appeal can be lodged at Level III.
- Level III is the Oversight Mechanism which will be formulated by the Ministry of Information and Broadcasting. An inter-departmental committee will be constituted up by the Ministry to hear and issue directions in respect of complaints. Such committee shall include members from the Ministry of Information and Broadcasting, Ministry of Women and Child Development, Ministry of Electronics and Information Technology, Ministry of External Affairs, Ministry of Defense, etc. All recommendations of the committee shall be presented to the Secretary of the Ministry of Information and Broadcasting for approval and directions. The directions can only be in the nature of blocking or removal of content, and not that an intermediary cease operations.