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What do the IT Rules 2021 mean for social media, digital news publishers and OTT platforms?

By: Adil Zawahir,Flywork.io Team

Introduction

In the last week of February 2021, the Government issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Rules propose significant changes in how internet intermediaries, including social media intermediaries, are regulated in India and propose new regulatory mechanisms for digital media outlets and streaming services. The specified changes place special emphasis on the protection of women and children from sexual offences on social media. The Rules also stress the need for online content publishers and social media intermediaries to subject themselves to domestic laws.

Changes from the earlier Intermediary Rules

Old Rules	New Rules
The old rules, namely, Information Technology (Intermediary Guidelines) Rules 2011 have now been superseded.	The new Rules have been passed under Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, 2000
Intermediaries as defined under Section 2(w) of the IT Act were treated more like ‘simple conduits’ or dumb, passive carriers who did not play an active role in the content.	The new Rules define a social media intermediary as one that “primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services”.
Excluded from the definition of intermediaries those that enabled commercial or business-oriented transactions; provided access to the internet; search engines, online directories or online storage services.	This distinction no longer exists in the final version.
Due diligence has been prescribed only to intermediaries (1).	Due diligence has been prescribed to intermediaries, as well as the newly established social media intermediaries (SMI) and significant social media intermediaries (SSMI) (2).
Safe harbour protections were enacted to offer immunity to intermediaries over criminal liability (3).	According to the new rules, in the case of due diligence not being followed by the intermediary, the safe harbour provisions would not apply to them.
Grievance Officer appointed by the intermediaries had to resolve complaints within one month.	Grievance Officer is to acknowledge the complaint received within 24 hours and resolve the issue within 15 days.
Merely required the intermediary to inform the users not to host or share content that displays obscenity, nudity etc.	The intermediary is to remove or disable, within 24 hours of complaints regarding obscenity, full nudity, morphed images etc, being received.

Specific changes to compliance and grievance redressal mechanisms

SSMIs have to appoint a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer.
SMIs offering messaging services will have the responsibility to help law enforcement agencies identify and track the first originator of any contentious or problematic information.
- This must only be employed as a measure of last resort and can only be executed through an order of a competent court or a Competent Authority.

Digital news publishers and streaming services (Over-The-Top platforms) will now have to notify the government of their operations, set up self-regulatory organizations and apply a complaints redressal mechanism, as well as adhere to a Code of Ethics, which have only been applicable to print and TV news so far. A three-level grievance redressal mechanism has also been mandated with different levels of self-regulation.

Level-I	Level-II	Level-III
Published and OTT platforms must appoint a Grievance Redressal Officer who must take decisions within 15 days.	Digital news companies and OTT platforms must form self-regulatory organizations (SROs), which will be registered with the government.	An oversight mechanism will be framed by the I&B Ministry which will publish a charter for SROs and will create an inter-departmental committee to hear grievances that have not been resolved in Level I and II.

Some concerns regarding the new Rules

Devdutta Mukhopadhyay, a Litigation Counsel at Internet Freedom Foundation, points out that while “decency or morality” are grounds available under Article 19(2) of the Constitution to impose reasonable restrictions upon free speech, it has been deliberately omitted from the text of Section 69A. The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit.
Although workshops/seminars on online content regulation were held by the Film Certification Appellate Tribunal and the I&B Ministry, there was insufficient public and stakeholder consultations to adhere to the true spirit of democratic participation in bringing about the new Rules.
Social media intermediaries being mandated to trace the first originator of contentious messages would entail storing sensitive information or breaking end-to-end encryption. This would not only violate the users’ right to privacy but also weaken overall security.

Reference

As defined under section 2(w) of the IT Act, 2000.
As detailed under Rule 3 and 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
In India, the safe harbour provisions have been defined under Section 79 of the IT Act, 2000.
As defined under section 69 of the IT Act, 2000.
Found under Rules 9 to 17 of the IT, Rules 2021.
“Notification Dated, The 25Th February 2021 G.S.R. 139(E): The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 | Ministry Of Electronics And Information Technology, Government Of India”. 2021. Meity.Gov.In. https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-139e-information-technology-intermediary.
Chunduru, Aditya, and Trisha Jalan. 2021. “Summary: Information Technology Rules 2021, And Intermediaries And Social Media Platforms | Medianama”. Medianama. https://www.medianama.com/2021/02/223-summary-internet-intermediary-liability-2021/.
Perrigo, Billy. 2021. “What India’s Sweeping New Internet Rules Mean”. Time. https://time.com/5946092/india-internet-rules-impact/.
Sarkar, Torsha. 2021. “New Intermediary Guidelines: The Good And The Bad”. Downtoearth.Org.In. https://www.downtoearth.org.in/blog/governance/new-intermediary-guidelines-the-good-and-the-bad-75693.
Mukhopadhyay, Devdutta. 2021. “Now Streaming: The Chilling Effect Of The New IT Rules”. The Indian Express. https://indianexpress.com/article/opinion/columns/new-it-rules-ott-platforms-content-youtube-netflix-amazon-7222873/.

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What do the IT Rules 2021 mean for social media, digital news publishers and OTT platforms?

Introduction

Reference

As defined under section 2(w) of the IT Act, 2000.

As detailed under Rule 3 and 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

In India, the safe harbour provisions have been defined under Section 79 of the IT Act, 2000.

As defined under section 69 of the IT Act, 2000.

Found under Rules 9 to 17 of the IT, Rules 2021.

Chunduru, Aditya, and Trisha Jalan. 2021. “Summary: Information Technology Rules 2021, And Intermediaries And Social Media Platforms | Medianama”. Medianama. https://www.medianama.com/2021/02/223-summary-internet-intermediary-liability-2021/.

Perrigo, Billy. 2021. “What India’s Sweeping New Internet Rules Mean”. Time. https://time.com/5946092/india-internet-rules-impact/.

Sarkar, Torsha. 2021. “New Intermediary Guidelines: The Good And The Bad”. Downtoearth.Org.In. https://www.downtoearth.org.in/blog/governance/new-intermediary-guidelines-the-good-and-the-bad-75693.

Mukhopadhyay, Devdutta. 2021. “Now Streaming: The Chilling Effect Of The New IT Rules”. The Indian Express. https://indianexpress.com/article/opinion/columns/new-it-rules-ott-platforms-content-youtube-netflix-amazon-7222873/.

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