Introduction

On 25 February 2021, the Government India notified the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“New Intermediary Rules”) under the Information Technology Act, 2000 (“IT Act”) in supersession of the Information Technology (Intermediary Guidelines) Rules, 2011. The New Intermediary Rules impose additional obligations on intermediaries, in particular, social media intermediaries and aim to regulate online content by prescribing a code of ethics. The New Intermediary Rules will be jointly administered by the Ministry of Electronics and Information Technology (MeitY) which will regulate obligations on intermediaries and the Ministry of Information and Broadcasting (MIB) which will administer the code of ethics and related procedures applicable to publishers of digital content. The key provisions of the New Intermediary Rules are summarized below.

Key Provisions

1. Applicability: In addition to Intermediaries regulated by the 2011 Rules, the New Intermediary Rules also extend to publishers of news and current affairs content (which will include online papers, news portals, news aggregators and agencies, but exclude physical newspapers, their online equivalent and individuals or users who do not transmit content in course of systematic business or professional or commercial activity) (“News Publishers”) and publishers of online curated content (which will include entities which perform a significant role in determining the content and provide users with curated content over the internet, but exclude entities or users who are not transmitting such curated content in the course of systemic business, professional or commercial activity) (“Content Publishers”).

2. Social Media Intermediaries: A social media intermediary (“SMI”) is defined to mean an intermediary that primarily or solely provides means for online interaction between two or more users and allows them to create, upload, share or access information using its services. Where an SMI has more than five million registered users, it will be regarded as a significant SMI (“SSMI”). SSMIs are subject to additional requirements under the New Intermediary Rules.

3. Obligations of Intermediaries: In addition to the obligations applicable to Intermediaries under the previous legal regime (such as the requirement to prominently publish the terms of use, privacy policy and user agreement), the New Intermediary Rules prescribe the following additional requirements:

(i) annually notify its users of changes to its policies;

(ii) put in place user terms restricting content which is patently false, misleading, inconsistent with or contrary to the laws of India;

(iii) remove content notified to be in violation of any law within 36 hours of a court or government order;

(iv) take all reasonable measures to remove sexual content or morphed images, within 24 hours of a complaint;

(v) constitute a grievance redressal mechanism and acknowledge receipt of user complaints within 24 hours and resolve disputes within 15 days;

(vi) retain details pursuant to takedowns and account removals for a period of 180 days; and

(vii) provide information or assistance to the Government within 72 hours for the purposes of verifying the identity of a user or for the prevention, detection, investigation, or prosecution of offences.

4. Additional Obligations of SSMIs: SSMIs are subject to the following additional obligations and must comply with these within the next 3 months:

(i.) appoint Indian resident employees as Chief Compliance Officer (responsible for adhering to the IT Act and the New Intermediary Rules), Grievance Redressal Officer (to address user complaints) and Nodal Officer (for coordination with law enforcement agencies);

(ii.) have a physical contact address in India to receive communication;

(iii.) in case of SSMIs primarily providing messaging services - enable the identification of the first originator of information if required by an order passed by a court or competent authority;

(iv.) enable voluntary verification of users and provide an identification mark for verified users;

(v.) endeavour to use automated tools to proactively identify and remove unlawful content, including content depicting rape and child sexual abuse in any form;

(vi.) implement appropriate mechanisms for grievance redressal and enable the tracking of the status of complaints;

(vii.) publish monthly compliance reports indicating details of complaints received, action taken thereon, and information removed or disabled access to as a result of proactive monitoring using automated tools; and

(viii.) clearly indicate any exclusive, targeted or sponsored content.

5. Code of Ethics: All News Publishers, Content Publishers and Intermediaries which primarily enable the transmission of such content are now required to comply with the prescribed Code of Ethics. News Publishers are required to comply with the Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978, the Programme Code under section 5 of the Cable Television Networks regulation) Act, 1995 and other prohibitions provided under any other laws. Content Publishers are required to ensure that they do not transmit illegal content, avoid certain categories of content, and comply with detailed guidance around classification of content into specific categories. Content Publishers must also put in place age verification mechanisms to restrict access to adult or age restricted content. The obligations of intermediaries are limited to the requirement of registration of News Publishers with the MIB, and the inclusion of a visible verification mark upon registration. Further, intermediaries are required to comply with blocking or removal directions issued by the MIB.

6. Obligations of Publishers: Publishers who operate (including by having any physical presence) in India or generate content (available in India) targeting Indian users in a systematic manner are required to provide specified information (such as details of the entity) to the MIB within 30 days of publication of the New Intermediary Rules and publish monthly compliance reports setting out details of grievances received and action taken.

7. Grievance Redressal Mechanism for Publishers: The New Intermediary Rules establish a three-tier grievance redressal mechanism for Publishers:

(i) At the first level, publishers shall regulate themselves by appointing a grievance redressal officer and establishing a grievance redressal mechanism. Additionally, Content Publishers will be required to selfcertify their content into different categories.

(ii) At the second level, self-regulating and independent body/bodies shall be established by the publishers to oversee the adherence to the Code of Ethics by the entity. Such self-regulating body will have to be headed by an eminent person such as a retired judge of the High Court/Supreme Court and be registered with the MIB.

(iii) At the third level, the MIB shall establish an oversight mechanism by constituting an interdepartmental committee of government officials to regulate the publication of digital content.

Conclusion

The New Intermediary Rules have been introduced to increase accountability of Intermediaries and regulate the publication and transmission of online content. The Rules lay down stringent requirements that must be complied by social media intermediaries, particularly significant social media intermediaries such as WhatsApp or Facebook thereby substantially increasing compliance costs. Intermediaries operating in India or proposing to enter the Indian market must take note of the above provisions and ensure that they are fully compliant with the New Intermediary Rules, failing which they shall lose the safe harbour protection under the IT Act, providing immunity from legal prosecution for any content posted on their platforms.