The Indian government has issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Rules propose significant changes in how internet intermediaries are regulated in India, and propose new regulatory mechanisms for digital media outlets and streaming services.
The government is empowering ordinary users of social media services, IT Minister Ravi Shankar Prasad and I&B Minister Prakash Javadekar said, while announcing the Rules in a press conference on Thursday. They said the basic essence of the Rules was a “soft touch oversight mechanism”. Prasad said that the government is insisting upon platforms to develop their own mechanisms to monitor and take down content, while building robust grievance redressal systems.
Crucially, the Rules mandate large social media companies (read: WhatsApp), to allow identifying the originator of messages, essentially threatening the integrity of end-to-end encryption-based communication.
The government has also brought a code of ethics for digital media outlets and OTT streaming platforms. Javadekar, while announcing the code, said that the government has understood the need for a “level playing field” for all media platforms. “All media platforms must have same justice system. Whether digital, print, TV or OTT, some rules have to followed. Some processes have to be set and the people have demanded them. Every day, I am getting many complaints on this,” he said.
For OTT platforms, the Rules propose a self-regulation body headed by a retired Supreme Court or High Court judge, or a “very eminent person”. They also call for grievance redressal system.
Social media intermediaries
Social media intermediaries will be responsible to follow due diligence, failing which safe harbour protections will not apply to them.
Significant intermediaries: The Rules make a distinction between “Social Media Intermediaries” and “Significant Social Media Intermediaries”, the latter of which presumably has a high number of users. The term hasn’t been defined, but will be notified by the central government.
- Significant intermediaries will have three months’ time to comply with additional compliances prescribed in the Rules. Some of their additional compliances include:
- Appoint a Chief Compliance Officer to ensure compliance with the IT Act and the Rules
- Appoint a 24X7 Nodal Contact Person to coordinate with law enforcement agencies
- Publish monthly compliance reports on complaints received and action taken on them, along with details of content taken down voluntarily
When asked how about what the definition will look like, Prasad said it would based on the number of users the platform has, “something like 50 lakh users”.
Traceability: Significant social media intermediaries will have to enable identification of the originator of the information for the sake of investigation purposes. This essentially challenges end-to-end encryption available on messaging platforms such as WhatsApp and Signal. Readers should note that traceability has been a controversial subject, and was also prescribed in the previous draft Intermediary Guidelines, 2018.
Grievance redressal to appeal takedowns: Significant social media intermediaries should provide users prior intimation when their content is removed or disabled. “Users must be provided adequate and reasonable opportunity to dispute the action taken by the intermediary,” the government press release read.
Voluntary user verification: Intermediaries are required to provide “appropriate mechanism” to users to verify themselves on the platform. Prasad said that this could be done in any form, such as by the use phone number, SIM card, Aadhaar and so on. “The social media companies can decide what to do. Social media accounts can be verified using SIM card with ease,” he said.
Digital Media Ethics Code for digital media and OTT platforms
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, the government press note read,
Self-classification of content: OTT platforms would have to self-classify the content into five age-based categories (U-Universal, U/A 7+, U/A 13+, U/A 16+, and A-Adult).
- Parental locks: They would also have to implement parental locks for content classified as “U/A 13+” or higher, and a reliable age verification mechanism for content classified as “A”. When asked to comment on whether the Rules were penalising platforms, by making them do something that parents at home should be doing, Javadekar said the responsibility lay with both parents and platforms.
Three-tier grievance redressal mechanism: The grievance redressal mechanism will be three-tiered:
- (i) Self regulation by publishers: A publisher needs to appoint a grievance redressal officer based in India who will take decisions on each grievance within 15 days.
- (ii) Self-regulatory bod(ies): “There may be one or more self-regulatory bodies of publishers”, read the press note. Such a body would be headed by a retired Supreme Court or High Court judge, or an independent eminent person. It would have a maximum of six members. It will oversee the adherence of the Code of Ethics by the publishers.
- The bodies will have to register with the I&B ministry.
- (iii) Oversight mechanism: The I&B ministry will formulate an oversight mechanism. It would publish a charter for self-regulating bodies, including Codes of Practices. The ministry will also set up an inter-departmental committee for hearing grievances.
On lack of consultation: Multiple reporters at the press conference pointed out that stakeholders had not been consulted before announcing the Rules. Javadekar, however, said that with regard to OTT platforms, the government had held consultations Delhi, Mumbai and Chennai. “We had asked them to create guidelines but that didn’t happen in a period of six months,” he said. The consultations he was referring to were workshops/seminars on online content regulation held by the Film Certification Appellate Tribunal and the Ministry.
On regulating digital news without consultation, Javadekar indicated it was just not possible since the government itself doesn’t now how many such organisation exist. “With news portals, we don’t know how many are there. Now when disclosures happen, we will now more,” he argued.
***Correction: Headline has been edited to remove the word ‘notified’, as the Rules have not been published in the Gazette as of publishing this post.