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TOPIC- NAVIGATING THE IMPLICATIONS: A CRITICAL ANALYSIS OF IMPACT OF INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021

Publications, Research paper

Contents

ABSTRACT………………………………………………………………………………. 1

KEYWORDS……………………………………………………………………………… 2

INTRODUCTION……………………………………………………………………….. 3

RESEARCH METHODOLOGY…………………………………………………….. 3

REVIEW OF LITERATURE…………………………………………………………. 4

NEED OF THE RULES………………………………………………………………… 5

RATIONALITY BEHIND BRINGING THE NEW GUIDELINES………… 6

FEATURES OF THE LEGISLATION…………………………………………….. 7

PROCEDURES FOR IMPLEMENTING………………………………………….. 8

CODE OF ETHICS FOR DIGITAL MEDIA RELATING TO OTT PLATFORM………………………………………………………………………………. 9

WHY AMENDMENT IS NEEDED?……………………………………………….. 9

IS IT RULES INFRINGING THE FUNDAMENTAL RIGHT?…………….. 9

METHOD………………………………………………………………………………… 12

SUGGESTIONS & CONCLUSION………………………………………………. 12

ABSTRACT

An important advancement in India’s regulation of digital content and online intermediaries is the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These regulations, which came into effect under the Information Technology Act of 2000, were designed to provide a thorough framework for digital media platforms, social media intermediates, and publishers in order to handle the growing issues of disinformation, false news, and digital content governance. Under the guidelines, online entities are divided into three categories: intermediates, social media intermediaries, and crucial social media intermediaries. These categories have different levels of obligations and responsibilities regarding user data protection and content moderation.

This project presents a concise overview of the key aspects of the Intermediary Guidelines and Digital Media Ethics Code Rules, 2021, and their implications, Content Removal and Tracing, User Grievance Redressal, Intermediary Liability, Digital Media and OTT Platforms, Impact on Freedom of Expression, Features of the legislation and the procedures for implementing it.

A significant development in India’s digital media administration is the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. They aim to establish a formal framework for user protection and content control, but they also bring up significant issues regarding the balance to be struck between maintaining freedom of speech and protecting online environments. The regulations are changing, and scholars, decision-makers, and the general public are very interested in how they will affect digital media and intermediaries in the long run.

KEYWORDS

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, Government notification, social media intermediaries, Digital media platforms, Integrity, Security

INTRODUCTION

The notification was given by the government in February 2021 to bring “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021”. Governments have authority to frame such rules as he gets the power to exercise it under Section 87 of “IT acts, 2000”. The power was also given to the government under “Information Technology (Intermediary Guidelines) Rules 2011” which at present was replaced by the new act. To regulate “over-the-top (OTT) platforms, social media intermediates, and digital media platforms”, the Indian government has introduced a set of laws known as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. In order to encourage responsible behavior, safeguard user interests, and uphold the integrity and security of digital media platforms, the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021” were created.

RESEARCH METHODOLOGY

Research methods and procedures are crucial for any successful research endeavor, ensuring effective investigation of the research problem. The present research paper employed an empirical and doctrinal approach, utilizing both primary and secondary data sources. Primary data will be gathered through an analysis of reports from relevant commissions and committees, legislation enacted by central and state legislatures, executive decisions, and judicial verdicts in pertinent cases. These sources will provide a foundational understanding of the legal framework and practical application of mediation in India.

Secondary data sourced from a variety of materials, including printed books, peer-reviewed journals and articles and reputable websites. Given the empirical and doctrinal nature of the study, methods such as observation and case study will be employed.

The systematic collection and analysis of primary and secondary data through these methods will facilitate a comprehensive analysis in understanding this paper. By addressing the empirical and doctrinal aspects, the study aims to offer a nuanced comprehension of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 within the Indian legal framework, ultimately informing policy decisions to enhance its effectiveness and accessibility.

REVIEW OF LITERATURE

Vijay Pal Dalmia, in his article titled, “A Brief Into The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021”[1], overviewed the IT Rules, 2021 enacted by the government and explained that this enactment of rule makes a significant impact mainly in digital platforms. It led to the protection of the rights of the user in intermediaries while accessing the digital platform to provide any sort of content. He, in this article has given the positive side of this rule and elaborate about its advantages. He has explained that by the help of stringent provisions in the rule, there is check and balance in the content of the social media and if there is any kind of misinformation or any non-compliance of the regulation, there will be strict action against the person. He has further explained that there is a proper establishment of grievance redressal mechanism to address the complaints raised by any user. In his article, he has also talked about the rising concern about governmental overreach which will likely lead to the infringement of the privacy of the user. Lastly, he has said with practical implication of this act, gradually there will be the evolution of the rules and it will shape digital governance.

One of the blogs published by Drishti, titled “Information Technology Rules, 2021”[2], discussed the controversy of the proposed amendments in IT Rules, 2021. In the amendments of the rule, it aims to introduce the Grievance Appellate Committee to keep the eye on the Online content which lead to raising concern about the governmental influence on the free speech. The withdrawal of the amendments has reflected that there are ongoing debates about the user protection and fundamental rights.

Moksha Sharma, in his paper titled, “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Protection from Malicious Content or Chilling Free Speech”[3], has explored the implication of the rules by strengthening more on Rule 3 and potential impact on internet intermediaries. As the Rule 3 mandated the intermediaries to promptly look into grievances of the users, removed the content from the social media which was deemed violative and provided a fast possible solution of the complaint. Further in this paper, he said that the critics’ argument about this rule is accountable for user protection and on the other side it gives the room for the authorities to restrict the online speech. Burden of proof shifted to the online creators to prove that there is compliance with the rules and there is no infringement of any provisions. In conclusion, the literature reinforces the needs of the clear guidelines so as to provide the mechanism to safeguard from overreach and protect fundamental rights.

NEED OF THE RULES

The Digital India initiative has evolved into a movement that uses technology which to the extent has influenced the Indians. If we see, almost everyone has access to mobile phones or the internet. Hence, by developing the technology, there is a wide increase of the users of social media platforms.

Recently, some really unsettling trends have been seen on social media platforms. Numerous media platforms had to develop fact-checking procedures due to the persistent circulation of false information. The dignity of women has frequently been threatened by the widespread exploitation in social media to post altered photographs of girls and content connected to taking revenge. Businesses now have serious concerns about the use of social media for obviously unethical corporate rivalry resolution. The use of vulgar language, offensive content, and open disdain for religious beliefs through platforms is on the rise.

Law enforcement authorities have faced new difficulties as a result of the rising incidences of criminals and anti-national groups misusing social media. These include acts that encourage the recruitment of terrorists, the dissemination of offensive material, the escalation of unrest, financial frauds, violence, disruption of the peace, etc.

Additionally, it was discovered that there is currently no trustworthy complaint procedure where regular users of OTT platforms and social media can make a complaint and have it resolved within a predetermined time frame. Due to a lack of transparency and the absence of a dependable grievance redressal procedure, users are now totally dependent on the whims and fancies of social media platforms. A user who has spent time, money, and effort building a social media presence is frequently seen to be helpless in the case that the platform restricts or deletes the profile without giving the user a chance to be heard.

By seeing all this, the government has taken a great initiative to bring laws especially for the Social Medias and OTT platforms, so that there will be a mechanism to punish the violators.

RATIONALITY BEHIND BRINGING THE NEW GUIDELINES[4]

By the help of the new guidelines, the users of digital platforms can easily file the complaint. If there is infringement of their rights, they can also demand for it and in addition to this they have the right to seek remedy according to the complaint.

The new guidelines have been come into reality because of the concerned factors:

  • There is case named “Prajwala vs Union of India,” here the apex court has given the decision on 11/12/2018 that Indian Government can have the power to set guidelines where they can make the required regulations to ban child pornography, Sexual content, contents of the websites in hosting platforms and in apps.
  • The Supreme Court has instructed the “Ministry of Electronics and Information Technology” on 24th September, 2019 to give the procedure for declaring upcoming guidelines.
  • It was been seen that there is high misuse of social media platform which was subject for the Calling Attention Motion in the Upper house of the parliament, and information about the intention of the government to improve the system of law and social media companies will be legally liable was also given to the chamber by the minister on 26th July. It has been expressed by the minister by continuous requests from the members of the parliament.
  • The report was prepared which says the greatest impact on the children & society at large by seeing pornography on social media. According to this report, the Ad-hoc committee of the Rajya Sabha has suggested looking for original content creators.
FEATURES OF THE LEGISLATION[5]
  1. Accountability and Transparency: The regulations are designed to increase the transparency and accountability of digital media platforms. They call for the establishment of a grievance redressal procedure by intermediaries, including the appointment of a grievance officer, to handle customer concerns and offer a resolution within a predetermined time limit.
  2. Fighting Fake News and Misinformation: Under the rules, social media platforms and other intermediaries are required to take action to stop the spread of false information. Within a specified timeframe, they must remove or disable access to any unlawful content, such as defamatory, vulgar, or intrusive information.
  3. User Protection and Safety: By requiring intermediaries to take action to prevent and stop online harassment, particularly of women, children, and members of marginalized communities, the rules place a priority on user safety and protection. The platforms must take proactive measures to find, block, or delete harmful or objectionable content.
  4. Identification of Originators of Illegal Content: Under regulations, the government has the authority to demand that social media intermediaries reveal the identity of the creators of illegal content in order to prevent, investigate, or punish offenses against India’s sovereignty, integrity, or security or other specified offenses.
  5. Level Playing Field for OTT Platforms and Digital Media: The regulations put OTT platforms and digital news outlets under regulatory control. They are obligated to follow the same moral guidelines as traditional media organizations, ensuring accurate and objective reporting and empowering readers to choose the media they want to read.
  6. Compliance and Due Diligence: The rules require intermediaries to use due diligence in carrying out their responsibilities. They must regularly release compliance reports, keep track of user concerns, and work closely with law authorities.

Overall, it is important to have regulations that regulate social media and digital media in order to combat misinformation, safeguard users, encourage online safety, maintain platform accountability, and improve confidence in the digital world.

PROCEDURES FOR IMPLEMENTING
  • After receiving complaints, intermediaries have 24 hours to delete or block access.
  • Intermediaries are required to implement a voluntary user verification system.
  • Visible proof of authenticity.
  •  Intermediaries are required to delete illegal information

Platforms should not host or publish any information that is illegal after getting real knowledge in the form of an order by a court or being informed by the appropriate government agency.

Only for Significant Social Media Intermediaries, Perform Additional Due Diligence:

  • The appointment of a Chief Compliance Officer shall be in charge of seeing that the Act and Rules are followed. Such a person ought to call India home.
  • Make a Nodal Contact Person available for constant communication with law enforcement. Such a person must be an Indian resident.
  • Publish a monthly compliance report that includes information about complaints that were received, the actions that were done in response to those complaints, and information about content that was proactively deleted by a prominent social media intermediary.
  • The first source of the information must be able to be identified by significant social media intermediaries that offer services largely in the form of messages.
  • Name a Resident Grievance Officer: Officer who will carry out the duties listed under the grievance resolution process. Such a person must be an Indian resident.
  • The intermediary is not required to reveal the contents of the message or any other information to the original sender.
CODE OF ETHICS FOR DIGITAL MEDIA RELATING TO OTT PLATFORM

Publishers of news in digital media are required to abide by the Programme Code and the Norms of Journalistic Conduct of the Press Council of India under the “Cable Television Networks Regulation Act.” According to the regulations, a three-level grievance redressal structure with varying degrees of self-regulation has been formed.

  • Level I: Publisher self-regulation;
  •  Level II: Self-regulation by the publishing industry’s self-regulatory agencies;
  • Level III: Mechanism for oversight.
WHY AMENDMENT IS NEEDED?

Despite the fact that a strong grievance redressal process is provided by IT Rules, 2021, however, there have been numerous occasions where intermediary grievance officers either fail to fairly and/or satisfactorily address the complaints.In order to defend the rights and interests of users in such a situation, the need for an appellate forum has been suggested.

IS IT RULES INFRINGING THE FUNDAMENTAL RIGHT?[6]

There are ongoing discussions and arguments about specific components of the guidelines, particularly concerning issues of freedom of expression and potential implementation difficulties. Freedom of speech and expression comes under the purview of fundamental rights. Now the question arises whether the IT Rules have curbed the citizen’s fundamental rights. There is the case of “K.S. Puttaswamy vs. Union of India,”[7] where it was held that  Right to privacy is our fundamental right. Article 19 of the Constitution of India says about freedom of speech and expression, where citizens of India can express what they feel. In July 2022, the rights given to the citizen extended digitally, as confirmed by the human rights council. If we see the IT Rules 2021, rule 4 infringes the fundamental right of privacy as envisaged in Article 17 of ICCPR. In addition, the apex court in the case of “K.S Puttaswamy vs. Union of India”[8] held that the right to privacy is incorporated in Article 21, which is “right to life”.

To inquire into certain acts, a significant social media middleman offering messaging services is required to identify the message’s original sender. Rule 4(2) of the new IT legislation says that this provision violates the right to privacy because it gives the executive authority to order a social media site to reveal a user’s identity.

The new regulations do not pass the legality test because they allow the Executive public to select intermediaries subject to demanding regulatory requirements at random. To restrict the right to speech, it should pass the legality test. It gives the government broad authority to choose which intermediaries must adhere to a unique, stricter regulatory framework.

The new regulations impose stringent new requirements, such as the requirement that messaging service intermediaries identify the first sender of specific messages [Rule 4(2)], the requirement that social media platforms uses the active content filtering algorithms to identify and remove specific types of illegal content Rule 4(4)]; the government’s authority to issue emergency blocking orders to remove certain content (Rule 16) immediately; and the imposition of criminal penalties on messaging service intermediaries. These factors led to an urgent legal challenge of the Rules’ conformity with India’s constitutional law framework before the Delhi High Court and Kerala High Court. Furthermore, it calls into doubt India’s responsibilities under the UDHR and the ICCPR.

One crucial safeguard of the rule of law is the necessity that restrictions on freedom of information and expression be “provided by law.” The Information Technology Rules, 2021, were the subject of a scathing letter from the Special Reporter on “Right to Freedom of Expression “of the United Nations to the Indian government on June 11.

However, in reaction to the harsh criticism of the recently passed IT Rules, India emphasized protecting “freedom of speech and expression” as a basic right in the Indian Constitution. Later, in 1997, to establish the Vishakha Guidelines, the top court once more looked to international human rights legislation.

Law on Privacy Violated by Obligation to Reveal Message Originator

Section 4(4) of the new regulation, which gives the government the authority to order an intermediary to identify the sender of a message, is a flagrant violation of the internationally recognized norms governing the right to privacy. A person’s privacy, family, home, or correspondence cannot be invaded arbitrarily or unlawfully, according to Article 17 of the ICCPR. The Special Reporters on the Right to Privacy observed in a report from November 2016 that encryption is an “effective technical safeguard” that, among other technical solutions, can help to defend the right to privacy.

According to the most current Freedom House Report, the nation is still a strong democracy with responsible policymaking. Although history shows that stable democracies eventually deteriorate into elected autocracies when freedom of speech and expression is curtailed, these Rules mark a turning point for the future of the UDHR and the ICCPR and for freedom of expression in India’s democratic future.

The 2021 Rules are being challenged, and activists, journalists, constitutional experts, and members of civil society have urged the courts to hear the cases for protecting the rights to privacy and freedom of expression and to invalidate any unreasonable provisions. The research claimed that if sustained and implemented as written, these Rules would control big tech in India at the expense of freedom of speech in the largest democracy on earth.

As a result, the nation must ensure its laws and practices do not blatantly infringe on the freedoms guaranteed by the ICCPR. However, several of the new IT Rules’ provisions aim to create an environment where the ICCPR-guaranteed freedom of speech in the digital sphere would be substantially compromised. To keep the government accountable, it might provide the authorities the authority to censor journalists who reveal material of public interest and those who report on violations of human rights.

METHOD

On December 24, 2018, the Ministry of Electronics and Information Technology (MEITY) released a draft of the Rules and requested public feedback. MEITY received 171 opinions from people, organizations, and groups in civil society and business. There were additional 80 counter responses to these remarks. These suggestions were carefully examined, and an inter-ministerial meeting was also convened. As a result, the Rules have now been completed and decided.

SUGGESTIONS & CONCLUSION

The Government of India introduced the IT Rules 2021, with the intention of regulating social media intermediaries and digital media platforms. Regarding these regulations’ effects on free speech, personal information, and the operation of online platforms, there has been a great deal of controversy and discussion. The following is an overview of some of the important elements and viewpoints of the IT Rules 2021:

The regulations place stronger requirements on intermediaries, such as social media platforms, to actively monitor and control the content that is hosted on their platforms. The law requires intermediaries to take down or block access to illegal content within a certain time frame and designate grievance officers to handle user complaints. These regulations seek to make platforms responsible for the information exchanged on them.

Traceability of Messages: According to the regulations, major social networking sites with more than 5 million members must enable message tracing, which implies that in response to a government request, they must provide the identity of a message’s sender. Concerns regarding user privacy and the possibility of power abuse have been raised by this clause.

Content Regulation: The regulations provide a code of conduct and minimum standards for the use of digital media, as well as specifics on what kinds of content are prohibited, including explicit material, hate speech, and defamatory information. Platforms must have procedures in place for handling complaints and grievances about this type of content.

Compliance and Penalties: There may be repercussions if the IT Rules 2021 are not followed. Intermediaries who violate the IT Rules 2021 risk losing their legal immunity for user-posted content, being held legally liable, and facing financial penalties. Critics claim that these clauses could lead platforms to self-censor in order to reduce legal concerns, which would limit freedom of expression.

Supporters contend that the regulations are essential to address worries about the spread of false information, hate speech, and other harmful content on digital platforms. The guidelines, according to them, are a way to enforce accountability and safeguard consumers from online abuse and false information. Supporters think that tracking texts is crucial for identifying and stopping illicit activity.

Because the rules offer the government extensive authority to regulate content and have the potential to be used to silence dissenting voices, opponents of the rules express worries about potential violations of freedom of speech and expression. Critics contend that the traceability clause violates user security, privacy, and encryption. They support a more sensible strategy that safeguards people’s rights while taking into account valid worries about online content.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, in conclusion, have provoked discussions and conflicts about how to strike a balance between freedom of speech, privacy, and the control of online platforms. There are worries about potential ramifications for user privacy and freedom of speech, even as the guidelines attempt to address issues with dangerous content and responsibility. Future developments and legal issues will probably influence the clear guidelines so that there is no breach of fundamental rights.

COLLEGE NAME: XAVIER LAW SCHOOL, XIM UNIVERSITY, BHUBANESWAR, ODISHA

[1] Vijay Pal Dalmia, “A Brief into The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021”, https://www.mondaq.com/india/social-media/1266276/a-brief-into-the-information-technology-guidelines-for-intermediaries-and-digital-media-ethics-code-rules-2021 , lastly viewed on 23rd June, 2024

[2] Drishti, “Information Technology Rules, 2021”, https://www.drishtiias.com/daily-news-analysis/information-technology-rules-2021-2/print_manually , lastly viewed on 23rd June, 2024

[3] Moksha Sharma, “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Protection from Malicious Content or Chilling Free Speech”, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3967857, lastly viewed on 23rd June, 2024

[4] Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) rules 2021. Available at:  https://www.pib.gov.in/Pressreleaseshare.aspx?PRID=1700749 (Accessed: 11 June 2024).

[5] Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) rules 2021. Available at: https://www.pib.gov.in/Pressreleaseshare.aspx?PRID=1700749 (Accessed: 11 June 2024).

[6] Are the rules 2021 restrict the freedom of speech and expression? Legal Service India – Law, Lawyers and Legal Resources. Available at: https://www.legalserviceindia.com/legal/article-7050-is-it-rules-2021-restrict-the-freedom-of-speech-and-expression-.html (Accessed: 12 June 2024).

[7] KS. Puttaswamy v. Union of India, (2019) 1 SCC 1

[8] Supra