Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
According to a release issued by the Ministry of Information and Broadcasting, while finalizing these Rules, both the Ministries of Electronics and Information Technology and the Ministry of Information and Broadcasting undertook elaborate consultations among themselves in order to have a harmonious, soft-touch oversight mechanism in relation to social media platform as well as digital media and OTT platforms etc.
Part- II of these Rules shall be administered by the Ministry of Electronics and IT, while Part-III relating to the Code of Ethics and procedure and safeguards in relation to digital media shall be administered by the Ministry of Information and Broadcasting, the release stated.
Guidelines Related to Social Media to Be Administered by the Ministry of Electronics and IT:
- Due Diligence To Be Followed By Intermediaries: The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
- Grievance Redressal Mechanism: The Rules seek to empower the users by mandating the intermediaries, including social media intermediaries, to establish a grievance redressal mechanism for receiving resolving complaints from the users or victims. Intermediaries shall appoint a Grievance Officer to deal with such complaints and share the name and contact details of such officer. Grievance Officer shall acknowledge the complaint within twenty-four hours and resolve it within fifteen days from its receipt.
- Ensuring Online Safety and Dignity of Users, Especially Women Users: Intermediaries shall remove or disable access withing 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in a sexual act or is in the nature of impersonation including morphed images etc. Such a complaint can be filed either by the individual or by any other person on his/her behalf.
- Two Categories of Social Media Intermediaries: To encourage innovations and enable the growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirement, the Rules make a distinction between social media intermediaries and significant social media intermediaries. This distinction is based on the number of users on the social media platform. The government is empowered to notify the threshold of the user base that will distinguish between social media intermediaries and significant social media intermediaries. The Rules require significant social media intermediaries to follow certain additional due diligence.
- Additional Due Diligence to Be Followed by Significant Social Media Intermediary:
- Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules. Such a person should be a resident in India.
- Appoint a Nodal Contact Person for 24x7 coordination with law enforcement agencies. Such a person shall be a resident in India.
- Appoint a Resident Grievance Officer who shall perform the functions mentioned under the Grievance Redressal Mechanism. Such a person shall be a resident in India.
- Publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary.
- Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years. The intermediary shall not be required to disclose the contents of any message or any other information to the first originator.
- Significant social media intermediary shall have a physical contact address in India published on its website or mobile app or both.
- Voluntary User Verification Mechanism: Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with a demonstrable and visible mark of verification.
- Giving Users An Opportunity to Be Heard: In cases where significant social media intermediaries removes or disables access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users must be provided with an adequate and reasonable opportunity to dispute the action taken by the intermediary.
- Removal of Unlawful Information: An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through an authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.
- The Rules will come in effect from the date of their publication in the gazette, except for the additional due diligence for significant social media intermediaries, which shall come in effect 3 months after publication of these Rules.
Digital Media Ethics Code Relating to Digital Media and OTT Platforms to Be Administered by Ministry of Information and Broadcasting:
There have been widespread concerns about issues relating to digital contents both on digital media and OTT platforms. Civil Society, film makers, political leaders including Chief Minister, trade organizations and associations have all voiced their concerns and highlighted the imperative need for an appropriate institutional mechanism. The Government also received many complaints from civil society and parents requesting interventions. There were many court proceedings in the Supreme Court and High Courts, where courts also urged the Government to take suitable measures.
Since the matter relates to digital platforms, therefore, a conscious decision was taken that issues relating to digital media and OTT and other creative programmes on Internet shall be administered by the Ministry of Information and Broadcasting but the overall architecture shall be under the Information Technology Act, which governs digital platforms.
Ministry of Information and Broadcasting held consultations in Delhi, Mumbai and Chennai over the last one and half years wherein OTT players have been urged to develop a "self-regulatory mechanism". The Government also studied the models in other countries including Singapore, Australia, the EU and the UK and has gathered that most of them either have an institutional mechanism to regulate digital content or are in the process of setting up one.
The Rules establish a soft-touch self-regulatory architecture and a Code of Ethics and three-tier grievance redressal mechanism for news publishers and OTT Platforms and digital media.
Notified under section 87 of the Information Technology Act, these Rules empower the Ministry of Information and Broadcasting to implement Part-III of the Rules which prescribe the following:
- Code of Ethics for online news, OTT platforms and digital media: This Code of Ethics prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.
- Self-Classification of Content: The OTT platforms, called the publishers of online curated content in the rules, would self-classify the content into five age-based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as "A". The publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every programme enabling the user to make an informed decision, prior to watching the programme.
- Publishers of news on digital media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media.
- A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
- Level-I: Self-regulation by the publishers;
- Level-II: Self-regulation by the self-regulating bodies of the publishers;
- Level-III: Oversight mechanism.
- Self-regulation by the Publisher: The publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take the decision on every grievance received by it within 15 days.
- Self-Regulatory Body: There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. Such a body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
- Oversight Mechanism: Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.