Impact of New Intermediary Guidelines on Digital Media Platforms

Md Baharul Islam

India is claimed to be the world’s “largest open Internet society” and attracts many social media companies to do business in India. However, there are a growing number of instances where social media is being used as a tool for violating the dignity of women, settling ‘out-of-office’ corporate rivalries, inciting malicious or anti-national ‘fake news’, inciting communal riots through disrespect to religious sentiments, mass circulation of obscene content, financial frauds and recruitment of youth by terrorist organizations. This abuse of social media is compounded due to lack of a robust complaint and redressal mechanism which is inaccessible to ordinary social/digital media users. It was therefore considered to set in motion a mechanism for consumer complaints and redressal powers in the form of Intermediary Guidelines. The Intermediary Guidelines are being argued to be “progressive, liberal and contemporaneous” and are intended to balance the myriad concerns of the public related to lack of transparency, accountability and rights of users with the misapprehension relating to curbing the Constitutional freedom of speech and expression.

The Ministry of Electronics and Information Technology, Government of India has notified new rules under the Information Technology Act, 2000 (IT Act) for monitoring social media digital media platforms. The new rules, viz. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Guidelines) inter alia aims to serve a dual-purpose: (1) increasing the accountability of the social media platforms (such as Facebook, Instagram, Twitter etc.) to prevent their misuse and abuse; and (2) empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution.

Key Features of Intermediary Guidelines:

Due diligence by intermediaries: Intermediaries are entities that store or transmit data on behalf of other persons.  Intermediaries include internet or telecom service providers, online marketplaces, and social media platforms.  The due diligence to be observed by intermediaries includes: (i) informing users about rules and regulations, privacy policy, and terms and conditions for usage of its services, (ii) blocking access to unlawful information within 36 hours upon an order from the Court, or the government, and (iii) retaining information collected for the registration of a user for 180 days after cancellation or withdrawal of registration.  Intermediaries are required to report cybersecurity incidents and share related information with the Indian Computer Emergency Response Team.

Significant social media intermediaries: A social media intermediary with registered users in India above a threshold will be classified as Significant Social Media Intermediaries.  Additional due diligence to be observed by these intermediaries include: (i) appointing a chief compliance officer to ensure compliance with the IT Act and the Rules, (ii) appointing a grievance officer residing in India, and (iii) publishing a monthly compliance report. 

First Originator:Intermediaries which provide messaging as a primary service must enable the identification of the first originator of the information on its platform.  This originator must be disclosed if required by an order from the Court or the government.  Such order will be passed for specified purposes including investigation of offences related to sovereignty and security of the state, public order, or sexual violence.  No such order will be passed if less intrusive means are effective in identifying the originator of the information.  The intermediary will not be required to disclose the contents of any communication.  If the first originator is located outside India, the first originator of that information within India will be deemed to be the first originator.

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.

Grievance Redressal:  The Rules require the intermediaries and digital media publishers to provide for a grievance redressal mechanism.  The intermediaries are required to designate a grievance officer to address complaints against violation of the Rules.  Complaints must be acknowledged within 24 hours and disposed of within 15 days.

In case of digital media publishers (news and OTT), a three-tier grievance redressal mechanism will be in place for dealing with complaints regarding content: (i) self-regulation by the publishers, (ii) self-regulation by the self-regulating bodies of the publishers, and (iii) oversight mechanism by the central government.  The publisher will appoint a grievance redressal officer based in India and address complaints within 15 days.  As part of the oversight mechanism, the Ministry of Information and Broadcasting (MIB) will establish an Inter-Departmental Committee to hear grievances not addressed by self-regulatory bodies and also oversee adherence to the code of ethics.

Blocking of Content in Case of Emergency: In case of emergencies, the authorised officers may examine digital media content and the Secretary, MIB may pass an interim direction for blocking of such content.  The final order for blocking content will be passed only after the approval by the Inter-Departmental Committee.  In case of non-approval from the Committee, the content must be unblocked. 

The introduction of the concept of tracking the first originator has been perceived as rather contentious and worrisome. It enables significant social media intermediaries providing messaging services to allow the enforcement mechanism to access the originator of any information. This is attempted towards curbing the spread of fake news and illegal activities taking place over messaging applications. However, cyber experts fear that this would eventually result in the overriding of the end-to-end encryption, allowing for the formation of a surveillance state. This may result in a major privacy breach, which most messaging applications wear on their sleeve as a badge of honor. The authority of tracking the originator can also be enforced in order to prevent or investigate into an offence relating to the sovereignty, integrity and security of the State. What the Rules fail to identify is the unimaginable scope of misuse of such a wide and discretionary power.

However, compliance with the provisions of the Intermediary Guidelines is likely to be a difficult task for the social media and digital media platforms and is also being argued as an attempt to restrict the freedom of speech and expression. A tightrope balance would be needed to address the issues of protection and safeguarding of rights of victims of social media versus the individual freedom of expression.


 

Md Baharul Islam

Asst. Professor,

ICFAI Law School, The ICFAI University Tripura

Mobile: 9402577220

Email: [email protected]