IT Rules 2021 Come into Effect

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Recently, Facebook has clarified that it aims to comply with the provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, which have come into effect.

• In February 2021, the Centre notified these rules and significant social media intermediaries were given a three month deadline for compliance, ending on 1^st June 2021.

About the Rules

• Digital Media
  • It covers digitised content that can be transmitted over the internet or computer networks.
  • It includes intermediaries such as Twitter, Facebook, YouTube.
  • It includes publishers of news and current affairs content and also curators of such content.
    • Publishers of news and current affairs content covers online papers, news portals, news agencies and news aggregators.
  • However, e-papers are not covered because print media comes under the purview of the Press Council of India.
    • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
  • It also excludes news operations not qualifying as a “systematic business activity” like blogs and non-profit publishers.
• Equal Treatment to Traditional Media
  • Digital media is brought under the ambit of Section 69(A) of the Information Technology Act, 2000 which gives takedown powers to the government.
    • The section allows the Centre to block public access to an intermediary “in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above”.
  • It also deprives the intermediaries of their “safe harbour protections” under Section 79 of the IT Act, 2000.
    • Safe Harbour provisions protect the intermediaries from liability for the acts of third parties who use their infrastructure for their own purposes.
    • For example, e-commerce platforms should not be held liable if people sell spurious goods and social media platforms should not be held liable if people post defamatory content.
• Three Tier Check Structure
  • Part III of the rules imposes three-tier complaints and adjudication structure on publishers.
    • Level I: Self-regulation.
    • Level II: Industry regulatory body headed by a former judge of the Supreme Court (SC) and High Court (HC) with additional members from a panel approved by the Ministry of Information and Broadcasting.
    • Level III: Oversight mechanism that includes an inter ministerial committee with the authority to block access to content, which can also take suo moto cognisance of an issue and any grievance flagged by the Ministry.
• Content Moderation Officers: Social media companies are needed to appoint officers who will be responsible for complying with content moderation orders.
• Originator of Message: The rules make it mandatory for platforms such as WhatsApp to aid in identifying the “originator” of “unlawful” messages.
• Grievance Redressal Portal: The rules mandate the creation of a grievance redressal portal as the central repository for receiving and processing all grievances.
  • Intermediaries are required to act on certain kinds of violations within 24 hours, and on all concerns of a complainant within 15 days.
• Information Disclosure to Competent Authorities: The rules also hold that competent authorities, through an order, may demand pertinent information for the purposes of prevention, detection, investigation, prosecution or punishment of crimes.
  • However, it excludes the intermediary from having to disclose the content of the personal messages.

Need of the Rules

• Absence of a regulatory body for Over-The-Top (OTT) platforms and social media.
• Increasing poor, offensive and abusive content in the name of freedom of expression.
  • With the deeper reach of smartphones, children and youth are being misled by such content.
• Threat to and exploitation of traditional media due to less regulation and improving technology.
• Piracy and increased illegal sharing of content leading to spread of fake news.
• Double standards of social media which has shown differential treatment for European and Asian Countries.
• Increasing digital crimes like radicalisation, terrorist recruitment, digital hacking, child pornography, etc.

Concerns Raised

• Unavailability of Safe Harbour Protection
  • It can lead to imposition of criminal liability upon the employees for non-compliance by intermediaries.
• Not in-lines with Modern Corporate Laws
  • The possibility of imposition of criminal liability of the employees of an intermediary is at odds with modern corporate criminal liability jurisprudence, which is leaning towards replacing criminal liability with monetary penalties, in the interests of ease of doing business and better enforcement of laws.
• Short Compliance Window
  • Various industry bodies have written to the Ministry seeking an extension of six months to a year for compliance.
  • Amid the second wave of Covid-19, intermediaries find it extremely difficult to organise the capabilities and resources required to configure their operations with the fresh obligations.
• Brief Timelines
  • Timelines to comply with orders and requests may not be sufficient given the volume of requests and the scope of the actions to be carried out by entities.
• Over Regulatory and Violative of Fundamental Rights
  • The administrative regulation on digital news media would make it virtually impossible for small or medium-sized publishers to function freely.
  • The present norms put a curb on the freedom to artistic expressions under Article 19(1)(a).
• Fears of Misuse
  • There are fears of these rules being misused instead of regulating as the government may use it to silence the protests and curb related news.
• Threat to Privacy of Data
  • The extant data retention mandate entails risking privacy of users in India and abroad in addition to security risks and technical complexities which requires a lot of time for development and testing before integration with the existing ecosystem.
• Possibility of Cyberattacks
  • The originator traceability mandate in end-to-end encrypted platforms could end up weakening the security architecture of the platform and could render the entire citizenry susceptible to cyberattacks by hostile actors.

Way Forward

• An independent authority may be appointed in consultation with the Leader of Opposition and Judiciary to ensure a neutral person for regulating the content.
• The definitions must be precisely defined involving the judiciary and industry stakeholders to avoid any controversy in future.
• It is important that stakeholders are consulted, especially technical experts, to discuss the challenges involved in technical mandates like proactive monitoring, traceability and data retention who can assist the State.
• The implementation should be delayed for such time till the inputs of the stakeholders were incorporated to ensure a progressive platform regulation regime in India.

Source: TH