The Government of India in February 2021 has notified new and updated Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. These rules are an extension of the existing intermediary liability rules under the Information Technology Act, 2011. They will have a significant impact on internet intermediaries.
Simply put, an intermediary is any service provider that hosts content created by regular users. Intermediaries are internet gateways. They include all communication and messaging channels, OTT platforms, and social media platforms. Social media companies like Facebook, Twitter, etc. are called Social Media Intermediaries. The new rules have tried to include entities who were traditionally not called intermediaries i.e., OTT platforms like Netflix, Amazon Prime as well as digital new publications. There is also a bifurcation called Significant Social Media intermediaries which includes entities with a threshold of users (50 Lakh Users) that the Central Government has notified.
These Intermediaries have been on the government’s radar for a long time. With the rise in users of social media platforms and OTT subscribers, it has become of utmost importance to have more comprehensive rules and regulations governing these platforms.
In the previous draft, these Intermediaries were treated as simple passive carriers who did not play a substantial role in the content being hosted on their platforms. This was at a time when the internet was new and still being developed but today the internet looks different.
There has been a significant increase in the number of users and the reach of the internet. The services provided by intermediaries have also changed to a huge extent. This arises the need to have specific rules, over a general blanket rule for the intermediaries.
The requirement for new rules:
- There is an increase in the spread of fake news. Users are misguided and the implications can be dangerous.
- Social media platforms have been used to malign the dignity of women and blackmail them.
- There is use of abusive and defamatory language against other users and government that remains unchecked.
- For ordinary users, there is no complaint redressal mechanism that can understand and solve their grievances.
- Social media is misused to settle corporate rivalries. Defaming or spreading untrue information about rivals has been on the rise and has resulted in entities losing their credibility without any fault.
As per IT Minister Ravi Shankar Prasad, “Social media is welcome to do business in India… they have got good business. They have got a good number of users and empowered ordinary Indians. But users must also be given a proper forum for the resolution of their grievances in a time-bound manner against abuse and misuse of social media.”
Positive effects of the new rules:
- These rules will help in bringing the clarity about the responsibilities of the Intermediaries.
- Redressal systems will provide ordinary users with a relief as they will be given a proper forum to raise their issue and the resolution of the same will be done in a time-bound manner.
- Significant Social Media Intermediaries (SSMI) will have a redressal team with a Chief Compliance Officer, a nodal Person of Contact with law enforcement agencies, and a Resident Grievances officer. (These three members will have to be residents of India.)
- The intermediary will have to provide information or assistance to the authorized government agency, for verification of identity for protection against, or prevention of cybersecurity incidents, within 72 hours of the receipt of an order.
- Under the new rules, intermediaries must complete the takedown process or disable any unlawful information within 36 hours.
- Identification of the first originator of information will help to identify, who has spread the information and who is to be held responsible.
- Protection of children against cyberbullying and sexual abuse.
- Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that expose the private areas of individuals, show such individuals in full or partial nudity or sexual act, or is like impersonation including morphed images, etc.
- Censorship by developing AI technology: According to the new rules, significant social media intermediaries are required to develop technology in a way that they have automated tools and mechanisms to identify information that shows or depicts any form of an act of child abuse or conduct.
Negative effects of the rules:
- Under the new rules, each intermediary will notify users to refrain from illegal activities or they will face termination of their accounts at least once each year. This will lead to a host of web services unnecessarily sending users periodic emails.
- The period for retention of data for investigative purposes is 180 days. This will cost the intermediaries extra, to preserve data for a longer time.
- The compulsion to have 3 officers who are residents of India in the redressal team may cause an issue for multi-national companies.
- End of end-to-end encryption: In the new rules, Significant social media intermediaries must enable tracing of the originator of information on their platform. The rules in detail specify that order may only be passed for serious offences, but some categories are open-ended. The rules clarify that intermediaries may not have to disclose contents of the electronic message and details of the originator or other users but with Information technology Decryption Rules there may arise a problem as these rules have power to demand the contents of the messages.
- This puts the privacy of users in jeopardy.
“These rules will harm end-to-end encryption, substantially increase surveillance, promote automated filtering and prompt a fragmentation of the Internet that would harm users while failing to empower Indians,” Udbhav Tiwari, Public Policy Advisor at Mozilla, said in a blog post.
- AI automation censorship may get misused. This will also create a hindrance to freedom of speech and freedom of expression. Creativity will become subject to restrictions.
- Penalty provisions: The intermediaries are provided with immunity so that they are not held liable for what their users do. According to The Intermediaries Rules, 2021 the penalty for the intermediaries will be a loss of immunity and a level of severity of consequences, including potential criminal prosecution under provisions of the IT Act and the Indian Penal Code.
The Supreme court has ordered the government to look into these rules and make them stricter. According to Supreme court, these rules seem more like guidelines. The court has asked the government to have more stringent and clear rules, as many rules seem incomplete. For instance, the punishments are not mentioned properly with clear instructions or monetary penalties for non-compliance with rules.
The experts are still on the fence about the new rules. There are two sides to every coin, with the positives there comes the negatives. But the positives must outweigh the negatives. The negatives should in no way threaten the basic fundamental rights of the citizens of India. The new developments in the law must be in the favour of protecting the citizens and their rights but not at the cost of endangering their other rights. The Act is in its developing stage and there is still scope for improvement. The authorities should reconsider and clear out the ambiguity before the Act has an irreversible impact on the constitutional rights of the citizens.