The Information Technology (IT) Rules, 2021

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 were released by the Ministry of Electronics and Information Technology (MeitY) in February.

The new Rules have demarcated between ‘social media intermediary’ and ‘significant social media intermediary’. Significant social media intermediaries, who have to observe additional due diligence are defined in the amended Rules as social media intermediaries with users above such threshold as may be notified by the Central Government. The Government has set 50 Lakh (5 Million) registered users as the threshold.

Additional Due Diligence to Be Followed by Significant Social Media Intermediary:

  • Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules. Such a person should be a resident in India.

  • Appoint a Nodal Contact Person for 24×7 coordination with law enforcement agencies. Such a person shall be a resident in India.

  • Appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism. Such a person shall be a resident in India.

  • 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 by the significant social media intermediary.

  • Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is 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. An intermediary shall not be required to disclose the contents of any message or any other information to the first originator. Significant social media intermediary shall have a physical contact address in India published on its website or mobile app or both.

  • Voluntary User Verification Mechanism: Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with demonstrable and visible marks of verification.

  • Giving Users An Opportunity to Be Heard: In cases where significant social media intermediaries remove or disable access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users must be provided an adequate and reasonable opportunity to dispute the action taken by the intermediary.

  • 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 an 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.


Code of Ethics for Digital Media Publishers

The Rules prescribe the code of ethics to be observed by publishers of digital media including:
(i) news and current affairs content providers, and
(ii) online curated content providers (also known as OTT platforms).

For news and current affairs, the following existing codes will apply:

(i) norms of journalistic conduct formulated by the Press Council of India,
(ii) programme code under the Cable Television Networks Regulation Act, 1995.

For OTT platforms, the requirements include:

(i) classifying content in age-appropriate categories as specified,
(ii) implementing an age verification mechanism for access to adult content, and access control measures such as parental controls, and
(iii) improving accessibility of content for disabled persons.

Ongoing Tussle over the The Information Technology (IT) Rules, 2021

According to Rule 4(2), a significant social media intermediary providing services primarily in the nature of messaging, such as WhatsApp, Facebook Messenger, Telegram, etc., shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a competent Court or Authority.

The three-month deadline for social media platforms to comply with the IT Rules, 2021 ended on May 25, 2021. The Government of India, on May 26, 2021, issued a letter to all the significant social media intermediaries, asking inter alia, the status of compliance by the said intermediaries.

In lieu of the compliance, WhatsApp filed a lawsuit against the Government of India in the Delhi High Court, contesting mainly Rule 4(2) of the IT Rules, 2021 by relying on the Supreme Court’s judgment in the case of Justice K S Puttaswamy vs Union of India. A spokesperson from WhatsApp stated that “Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy”. Recently, WhatsApp updated the FAQ page on its website, with a very detailed post about “What is traceability and why does WhatsApp oppose it.”

In response to Whatsapp’s plea, the Ministry of Electronics and Information Technology of India, in a press release clarified that “Such Requirements are only in case when the message is required for Prevention, Investigation or Punishment of Very Serious Offences related to the 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.” The press release further clarified that the opposed Rules passes the proportionality test of the Indian Constitution and stated, “The cornerstone of this test is whether a lesser effective alternative remedy exists. As per the Intermediary Guidelines, the originator of information can only be traced in a scenario where other remedies have proven to be ineffective, making the same a last resort measure. Moreover, such information can only be sought as per a process sanctioned by the law thereby incorporating sufficient legal safeguards.”

As far as other social media giants are concerned, Facebook has confirmed that they “aim to comply with the provisions of the IT rules, even as they continue to discuss a few of the issues which need more engagement with the government”.

Twitter Contention and Free Speech Debate

The social media giant, Twitter, has raised concerns regarding free speech over the new IT guidelines. It stated that it would strive to comply with the law but if guided by principles of transparency and freedom of expression under the rule of law. The Delhi High Court on May 31 issued a notice to the microblogging site on a plea filed against it for alleged non-compliance with the new IT rules.

Failure to comply with the rules could lead to the removal of ‘intermediary’ status (a safe harbour to avoid liability for the content that their users publish) of the companies and could possibly invite sanction or even punishment under the law. The government insists that the rules are neither arbitrary nor sudden, since the draft rules were put up for public comments and several individuals, industrial associations and organizations had responded. The comments were then analysed in detail and an inter-ministerial meeting was also held before finalising them.

All of this would entail administrations pulling regulatory and legislative levers to implement its priorities. We are here to help your business along with implications for how to respond to shifts. Numerous companies and hyper growth startups have been a beneficiary of our advocacies and interventions.

The Way Forward

Freedom of speech and expression is the basic tenet of any democracy. However, no freedom is absolute or completely unrestricted. The imperative of striking the right balance between fundamental rights and ascertaining the reasonableness of a restriction has been a constant effort since the adoption of the Constitution. The debate has now reached the digital world.

The on-going tussle between private, tech giants who own a substantial amount of Big Data, governments desirous of imposing reasonable restrictions and users worried about issues relating to data privacy and constraints on freedom of speech and expression, is likely to get more complicated before optimum solutions can be arrived at. The IT Rules 2021 seek to address concerns of the citizens without infringing on their privacy and personal liberties, while maintaining digital sovereignty at the same time.
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