The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as Rules, 2021) were notified on February 25, 2021. The Rules have been notified under the Information Technology Act, 2000.
- The Act provides for the regulation of electronic transactions and cybercrime. The 2021 Rules replace the Information Technology (Intermediaries Guidelines) Rules, 2011.
- Definitions:
- As per Section 2(1)(i) of the Rules, 2021, ‘Digital Media’ means digitized content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by-
- an intermediary; or
- a publisher of news and current affairs content or a publisher of online curated content;
- As per Section 2(1)(i) of the Rules, 2021, ‘Digital Media’ means digitized content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by-
- As per Section 2(1)(w) of Rules 2021, ‘social media intermediary’ means an intermediary which 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;
- 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:
- informing users about rules and regulations, privacy policy, and terms and conditions for usage of its services,
- the rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,—
(i) belongs to another person and to which the user does not have any right;
(ii) is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;
(iii) is harmful to child;
(iv) infringes any patent, trademark, copyright or other proprietary rights;
(v) violates any law for the time being in force;
(vi) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
(vii) impersonates another person;
(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation;
(ix) contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;
- shall periodically inform its users, at least once every year, that
- in case of non-compliance with rules and regulations, privacy policy or user agreement it has the right to terminate the access or usage rights of the users to the computer resource immediately or remove non-compliant information or both.
- inform its users of its rules and regulations, privacy policy or user agreement or any change in the rules and regulations, privacy policy or user agreement
- blocking access to unlawful information within 36 hours upon an order from the Court, or the government, and
- 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 50 lakh and more registered users in India will be classified as Significant Social Media Intermediaries. Additional due diligence to be observed by these intermediaries include:
- appointing a chief compliance officer to ensure compliance with the IT Act and the Rules,
- appointing a grievance officer residing in India, and
- publishing a monthly compliance report.
- 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:
- news and current affairs content providers, and
- online curated content providers (also known as OTT platforms).
- Definition of ‘news and current affairs content’ as per Section 2(1)(m) of Rules, 2021 includes newly received or noteworthy content, including analysis, especially about recent events primarily of socio-political, economic or cultural nature, made available over the internet or computer networks, and any digital media shall be news and current affairs content where the context, substance, purpose, import and meaning of such information is in the nature of news and current affairs content.
- Definition of ‘publisher of news and current affairs content’ as per Section 2(1)(t) of Rules, 2021 means an online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which is functionally similar to publishers of news and current affairs content but shall not include newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity;
.
- For news and current affairs, the following existing codes will apply:
- norms of journalistic conduct formulated by the Press Council of India,
- programme code under the Cable Television Networks Regulation Act, 1995.
- Definition of ‘online curated content’ as per Section 2(1)(q) means any curated catalogue of audio-visual content, other than news and current affairs content, which is owned by, licensed to or contracted to be transmitted by a publisher of online curated content, and made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, audio visual programmes, documentaries, television programmes, serials, podcasts and other such content;
- For online curated content providers (OTT platforms), the requirements include:
- classifying content in age-appropriate categories as specified,
- implementing an age verification mechanism for access to adult content, and access control measures such as parental controls, and
- 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.
- As per Section 2(1)(j) of the Rules, 2021, ‘grievance’ includes any complaint, whether regarding any content, any duties of an intermediary or publisher under the Act, or other matters pertaining to the computer resource of an intermediary or publisher, as the case may be.
- Three Tier Grievance Mechanism: 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:
- self-regulation by the publishers,
- self-regulation by the self-regulating bodies of the publishers, and
- 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.
Source: www.prsindia.org and The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
