1. Background
Social media platforms have empowered its users to exercise their freedom of speech and expression. But there is a flip side to this proliferation of social media as well, which is spreading of fake news, sharing of morphed images, child abuse, revenge porn etc. The Hon’ble Supreme Court in the case of Prajwala v. Union of India[1] vide order dated 11 December 2018 has directed the Union to frame necessary guidelines to eliminate child pornography and morphed and explicit images from online platforms. Accordingly, the Central Government vide notification G.S.R. (139E) dated 25 February 2021 introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (“Intermediary and Digital Media Guidelines” or “Guidelines”) by exercising its power under Section 87(2) of the Information Technology Act, 2000 (“the Act”) which are in supersession of Information Technology (Intermediary Guidelines) Rules 2011 (“erstwhile guidelines”).
The erstwhile guidelines were not enough to regulate social media and over-the-top platforms, thus the introduction of Intermediary and Digital Media Guidelines is aimed at plugging loopholes in the existing regime. But before we delve further into intricacies of the Guidelines let us first understand the existing intermediary regime under the Act.
2. Intermediary and Safe Harbor Provision
An intermediary has been defined under Section 2(w) of the Act as “intermediary, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”. So, basically an intermediary provides a platform to its users to share, upload, disseminate information between and amongst each other. As discussed, with the increase in number of users, there has been an upsurge in unlawful activities. Although the intermediary shall be responsible for the information or data circulated or hosted on its platform, it is not an easy task to regularize such information or data. Hence, a protection in the form of a safe harbor provision was included in the Act to protect the intermediaries from being vicariously liable for the content hosted or circulated over it.
Section 79 of the Act is the safe harbor provision which only provides conditional immunity to the intermediaries subject to sub-section (2) and (3) of Section 79 of the Act. In order to enjoy the immunity, the intermediary must adhere to the due diligence guidelines and ensure to have a passive participation while transmitting the information i.e., it does not: a) initiate the transmission; b) select the receiver of information; c) select or modify the information contained in the transmission[1]. Additionally, Section 79(3)(b) contemplates the ‘notice and takedown’ process whereby the intermediary is required to expeditiously remove any unlawful content upon receiving actual knowledge by the Appropriate Government. Thus, an intermediary shall observe strict compliance with these provisions in order to enjoy immunity under Section 79 of the Act.
3. What Does the Guidelines Say?
The Intermediary and Digital Media Guidelines have two broad limbs. One discusses the due diligence practices to be observed by an intermediary in order to enjoy the benefits of safe harbor provision and non-compliance to the same will lead to stripping away of such immunity granted under Section 79 of the Act. The other provides for a soft-touch regulatory mechanism whereby the publishers of news and online curated content have to observe adherence to the ethics of code.
3.1 Guidelines relating to Intermediaries
Part II of the Intermediary and Digital Media Guidelines discusses the due diligence and grievance redressal requirements that are to be followed by an intermediary. The erstwhile guidelines did not provide for grievance redressal mechanism as mandated under these Guidelines neither did it provide for additional compliances for Significant Social Media Intermediaries.
3.1.1 Due Diligence by Intermediary
Every intermediary, including Social Media Intermediary (“SMI”) and Significant Social Media Intermediary (“SSMI”), is under an obligation to:
i) Publish a privacy policy with a caution not to host, display, upload, publish, transmit inter alia any information which is untrue or defamatory, obscene, invasive of others privacy or violative of any law for the time being in force or threatens the unity, integrity, sovereignty of the State on its website and mobile application. The privacy policy shall clearly mention that hosting or publication of any such information may lead to termination of the user account.
ii) Inform its users, at least once in a year, that in case of non-compliance with the rules, regulations or privacy policy, intermediary has the right to terminate the user agreement.
iii) Remove any unlawful information or data which relates to contempt of court or defamation or threatens inter alia the integrity and sovereignty of India, public order, decency or morality within 36 hours of receiving an order under Section 79(3)(b) of the Act. Such order shall be addressed to the Grievance Officer appointed by the intermediary.
iv) Inform its users, at least once in a year, the rules, regulations, privacy policy of the intermediary and any change thereto.
v) Preserve, solely for the purposes of investigation, all the unlawful information or data, for a minimum of 180 days even after disabling access to it.
vi) Retain the user data for a minimum of 180 days after cancellation or withdrawal of the user account.
vii) Provide such information under its control, within 72 hours of receiving an order in writing from the investigating agency.
3.1.2 Grievance Redressal Mechanism
An intermediary shall develop a mechanism where the users are allowed to submit complaints or grievances against any potential violation of the rules or regulations. For this, the intermediary shall appoint a Grievance Officer whose particulars shall be disclosed on the website or mobile application of the intermediary. The Grievance Officer shall acknowledge the complaint within 24 hours and dispose of the same within 15 days but where such complaint is with respect to removal of an explicit content which includes individuals involved in sexual acts or impersonation in the form of morphed images then the intermediary shall take all reasonable steps to take down such content within 24 hours. If the unlawful information is removed based on grievances received then it wouldn’t be a violation of Section 79(2)(a) or (b) of the Act.
3.1.3 Additional diligence on Significant Social Media Intermediary
The Ministry of Electronics and Information Technology (“MeitY”) vide notification F. No. 16(4)/2020-CLES dated 25February 2021 provided fifty lakhs or more registered users as a threshold for an SMI to be treated as an SSMI. Pursuant to this notification, it is now clear that an existing SSMI shall comply with these additional diligences by 25 May 2021. The additional diligences mandates that an SSMI shall:
i) Appoint a resident Chief Compliance Officer who shall be responsible for ensuring compliances with the Act and Rules and shall be liable where intermediary fails to ensure due diligence. However, the legislature has respected the principle of audi alteram partem before imposing any liability on the SSMI.
ii) Appoint a resident Nodal Contact Person who shall be responsible for coordinating with the enforcement agencies.
iii) Appoint a resident Grievance Officer who shall be responsible to maintain an efficient Grievance Redressal Mechanism where a unique ticket number should be generated against every complaint to track its status.
iv) Have a physical contact address in India details of which shall be published on its website and mobile application for communication purposes.
v) Identify the first originator of the information pursuant to a judicial order passed by a court of competent jurisdiction primarily to protect, inter alia, against offences relating to the sovereignty and integrity of India or public order or in relation with rape, child sexual abuse material, punishable with imprisonment of not less than five years. Where the first originator of the information is situated outside the territory of India, then the first originator of the information within India shall be deemed to be the first originator of such information.
vi) Put in place a technology-based measure to display a caution notice when a user attempts to access any unlawful or explicit content.
vii) Send a notice to the user before deletion of any information uploaded or shared by him explaining the reasons for taking such an action and give him adequate opportunity to dispute such action.
vii) Publish a monthly periodic compliance report mentioning the number of complaints received, action taken and the number of communication links disabled on the platform as a result of proactive monitoring by the intermediary.
3.1.4 The Government may require any intermediary to comply with the additional due diligence of SSMI based on the dissemination of information and interaction between the users.
3.2 Guidelines relating to Digital Media and OTT Platforms
The introduction of Part III of the Intermediary and Digital Media Guidelines has cured a long-standing regulatory lacuna by issuing a code of ethics for regulating the content circulated on digital media and over-the-top platforms. The Guidelines clarified the fact that a publisher of news & current affairs and online curated content will be governed by the Ministry of Information and Broadcasting (“I&B Ministry”) provided that such publisher operates in or has physical presence in India. The code of ethics under the Guidelines mandate publishers of online curated content to self-classify its content as per the rating system (U, U/A 7+, U/A 13+, U/A 16+ or A) and display the same at the beginning of every program. Additional protection in the form of parental locks and age verification requirement for specific content is also mandated.
3.2.1 Soft-touch Regulatory Mechanism
In order to ensure strict adherence to the code of ethics the Guidelines provide a three-tier system to establish a grievance redressal mechanism which is as follows:
Level I – Self Regulation Mechanism
A publisher shall appoint a resident grievance officer who shall be the nodal point of contact for the complainant, self-regulating body and the I&B Ministry. The particulars of such officer shall be appropriately placed on the website or interface to receive grievances from the public and such grievance shall be addressed within a period of 15 days.
Level II – Self Regulating Mechanism
The publisher may constitute an independent self-regulatory body in addition to the level I self-regulatory mechanism which shall be headed by a retired judge of the Supreme Court or the High Court or otherwise, an independent eminent person. The body shall get itself registered with the I&B Ministry within 30 days of its constitution. On receiving a complaint, the body shall convey its decision (in the form of an advisory) to the publisher within 15 days and may require the publisher to issue an apology or reclassify rating for its content, as the need be. The body, however, cannot direct the publisher to remove or modify its content and shall refer such matters to the I&B Ministry under Oversight Mechanism.
Level III – Oversight Mechanism
The I&B Ministry shall constitute an inter-departmental committee, headed by an authorized officer, for hearing grievances where the publisher is not complying with the decision of the self-regulatory body or where the self-regulatory body is unable to address the grievance within the specified time frame. The committee has the power to delete or modify the contents which may disturb the public order. The authorized officer in cases of emergency as provided under Section 69-A(1) of the Act, may submit a recommendation in writing for blocking of any information to the Secretary of the IB Ministry. The Secretary after recording his reasons in writing may issue a direction to the publisher or intermediary to block such information without giving him an opportunity of being heard. Within 48 hours of passing of such order, the Committee shall issue a final order by approving or rejecting the interim order.
3.2.2 Disclosure of Information
An existing publisher of news and online curated content shall be required to furnish the details of its entity by 25 March 2021 to the I&B Ministry and where a new publisher begins operation in India, then within 30 days of coming into existence. Furthermore, such publisher and self-regulating body shall publish a monthly compliance report mentioning the details of grievances received, orders received and action taken thereon. Additionally, the Minister of Information and Broadcasting, Shri. Prakash Javadekar while commenting on the Guidelines has also maintained that the publishers of digital news media and online curated content may be required to disclose the details and the source of information.
4. Conclusion
The Intermediary and Digital Media Guidelines are introduced with a view to fill the regulatory vacuum but we will have to wait to study the impact of these Guidelines on the OTT and News platforms. However, there are certain issues which seem to be of some concern like, even though it is understandable that the requirement to disclose the first originator of information comes from the need to protect the integrity and sovereignty of India, it will have a serious impact on privacy of users registered on the social media platforms (especially the messenger applications like WhatsApp, Telegram, Signal etc.) as this would essentially mean that the communication between the users will not be private anymore and these platform can read, record and preserve these conversations.
Additionally, it is abundantly clear that the Act extends its applicability even to offences committed outside India yet the Guidelines has limited its applicability (to India) where the first originator of unlawful information may be located outside India. As evident, the Guidelines are still in its nascent stage and we could expect more developments to the Intermediary and Digital Media Guidelines in the near future.
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