Government
notifies Information Technology (IntermediaryGuidelines and Digital Media
Ethics Code) Rules 2021
Social media platforms welcome to do business in India but they need to follow
the Constitution and laws of India
Social media platform can certainly be used for asking questions and criticise
Social media platforms have empowered ordinary users but they need
accountability against its misuse and abuse
The new Rules empower ordinary users of social media, embodying a mechanism for
redressal and timely resolution of their grievance
Rules about digital media and OTT focuses more on in house and self-regulation
mechanism whereby a robust grievance redressal mechanism has been provided
while upholding journalistic and creative freedom
The proposed framework is progressive, liberal and contemporaneous
It seeks to address peoples’ varied concerns while removing any misapprehension
about curbing creativity and freedom of speech and expression
The guidelines have been framed keeping in mind the difference between
viewership in a theatre and television as compared to to watching it on
Internet
Posted On: 25 FEB 2021 3:21PM by PIB Delhi
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.
While finalizing these
Rules, both the Ministries of Electronics and Information Technology and
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 Ministry of Electronics and IT, while Part-III
relating to Code of Ethics and procedure and safeguards in relation to digital
media shall be administered by the Ministry of Information and Broadcasting.
Background:
The Digital India
programme has now become a movement which is empowering common Indians with the
power of technology. The extensive spread of mobile phones, Internet etc. has
also enabled many social media platforms to expand their footprints in India.
Common people are also using these platforms in a very significant way. Some
portals, whichpublish analysis about social media platforms and which have not
been disputed, have reported the following numbers as user base of major social
media platforms in India:
·
WhatsApp users: 53
Crore
·
YouTube users: 44.8
Crore
·
Facebook users: 41
Crore
·
Instagram users: 21
Crore
·
Twitter users: 1.75
Crore
These social platforms
have enabled common Indians to show their creativity, ask questions, be
informed and freely share their views, including criticism of the Government
and its functionaries. The Government acknowledges and respects the right of
every Indian to criticizeand disagree as an essential element of democracy.
India is the world’s largest open Internet society and the Government welcomes
social media companies to operate in India, do business and also earn profits.
However, they will have to be accountable to the Constitution and laws of
India.
Proliferation of social media,on one hand empowers the citizens then on the
other hand gives rise to some serious concerns and consequences which have
grown manifold in recent years. These concerns have been raised from time to
time in various forums including in the Parliament and its committees, judicial
orders and in civil society deliberations in different parts of country. Such
concerns are also raised all over the world and it is becoming an international
issue.
Of late,some very disturbing
developments are observed on the social media platforms. Persistent spread of
fake news has compelled many media platforms to create fact-check
mechanisms.Rampant abuse of social media to share morphed images of women and
contents related to revenge porn have often threatened the dignity of women.
Misuse of social media for settling corporate rivalriesin blatantly unethical
manner has become a major concern for businesses.Instances of use of abusive
language, defamatory and obscene contents and blatant disrespect to religious
sentiments through platforms are growing.
Over the years, the
increasing instances of misuse of social media by criminals, anti-national
elements have brought new challenges for law enforcement agencies. Theseinclude
inducement for recruitment of terrorists, circulation of obscene content,
spread of disharmony, financial frauds, incitement of violence, public order
etc.
It was found that
currently there is no robust complaint mechanism wherein the ordinary users of
social media and OTT platforms can register their complaint and get it
redressed within defined timeline. Lack of transparency and absence of robust
grievance redressal mechanism have left the users totally dependent on the
whims and fancies of social media platforms. Often it has been seen that a user
who has spent his time, energy and money in developing a social media profile
is left with no remedies in case that profile is restricted or removed by the
platform without giving any opportunity to be heard.
Evolution of Social
Media and Other Intermediaries:
·If we notice the
evolution of social media intermediaries, they are no longer limited to playing
the role of pure intermediary and often they become publishers. These Rules are
a fine blend of liberal touch with gentle self-regulatory framework. It works
on the existing laws and statues of the country which are applicable to content
whether online or offline. In respect of news and current affairs publishers
are expected to follow the journalistic conduct of Press Council of India and
the Programme Code under the Cable Television Network Act, which are already
applicable to print and TV. Hence, only a level playing field has been
proposed.
Rationale and
Justification for New Guidelines:
These Rules
substantially empower the ordinary users of digital platforms to seek redressal
for their grievances and command accountability in case of infringement of
their rights. In this direction, the following developments are noteworthy:
·
The Supreme Court in
suo-moto writ petition (Prajjawala case) vide order dated 11/12/2018 had
observed that the Government of India may frame necessary guidelines to
eliminate child pornography, rape and gangrape imageries, videos and sites in
content hosting platforms and other applications.
·
The Supreme Court vide
order dated 24/09/2019 had directed the Ministry of Electronics and Information
Technology to apprise the timeline in respect of completing the process of
notifying the new rules.
·
There was a Calling
Attention Motion on the misuse of social media and spread of fake news in the
Rajya Sabha and the Minister had conveyed to the house on 26/07/2018, the
resolve of the Government to strengthen the legal framework and make the social
media platforms accountable under the law. He had conveyed this after repeated
demands from the Members of the Parliament to take corrective measures.
·
The Ad-hoc committee
of the Rajya Sabha laid its report on 03/02/2020 after studying the alarming
issue of pornography on social media and its effect on children and society as
a whole and recommended for enabling identification of the first originator of
such contents.
Consultations:
·
The Ministry of
Electronics and Information Technology (MEITY) prepared draft Rules and invited
public comments on 24/12/2018. MEITY received 171 comments from individuals,
civil society, industry association and organizations. 80 counter comments to
these comments were also received. These comments were analyzed in detail and
an inter-ministerial meeting was also held and accordingly, these Rules have
been finalized.
Salient Features
Guidelines Related to
Social Media to Be Administered by 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 andshare 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, Specially 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 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 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. Government is
empowered to notify the threshold of user base that will distinguish between
social media intermediaries and significant social media intermediaries. The Rules
require the significant social media intermediaries to follow certain
additional due diligence.
·
Additional
Due Diligence to Be Followed by Significant Social Media Intermediary:
o 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.
o Appoint a Nodal Contact Person for
24x7 coordination with law enforcement agencies. Such a person shall be a
resident in India.
o Appoint a Resident Grievance Officer who
shall perform the functions mentioned under Grievance Redressal Mechanism. Such
a person shall be a resident in India.
o 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.
o 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. Intermediary shall
not be required to disclose the contents of any message or any other
information to the first originator.
o Significant social media intermediary shall
have a physical contact address in India published on its website or mobile app
or both.
o 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 demonstrable and visible mark of verification.
o 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 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 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.
Consultations:
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 “self-regulatory mechanism”. The Government also studied the
models in other countries including Singapore, Australia, EU and 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 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 Ethicsfor 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 as 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.
o Level-I: Self-regulation by the publishers;
o Level-II: Self-regulation by the
self-regulating bodies of the publishers;
o Level-III: Oversight mechanism.
·
Self-regulation
by the Publisher: 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 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 be
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.
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