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Review: “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021”
Author: Intern - Ankita Panwar
Citation: Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, Ministry of Electronics & IT. <https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf>
Introduction
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(hereinafter “IT Rules, 2021”) notified on February 25th, 2021 are the guidelines under review. The IT Rules, 2021 empower users of social and digital media against Over The Top (OTT) media streaming platforms and online news sites, by holding these entities accountable for the content that is being circulated on their platforms.
The IT Rules, 2021 have been framed by the Central Government in exercise of the powers conferred under Section 87 of the Information Technology Act, 2000 which are in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011. These new rules classify and provide for separate regulations for intermediaries and other entities as: Under Rule 2(o) “News Aggregator” as an entity who performing a significant role in determining the news and current affairs content, under Rule 2(t) “Publisher of news and current affairs content”, under Rule 2(u) “Publisher of online curated content”, under Rule 2(v) “Significant social media intermediary”(SSMI) and under Rule 2(w) “Social media intermediary”(SMI).
These IT Rules, 2021 are seen by this Reviewer as a restriction on the citizen’s right to freedom of speech as well as right to privacy. Therefore, in the light of the aforesaid, this review examines the socio-legal outcomes of these new IT Rules, 2021.
Identification of the “First Originator”
One of the most controversial provisions in the IT Rules is the requirement of a SSMI engaged in messaging to identify the “first originator” of information. An order to this effect must be made by a competent court or an authority competent under Section 69 of the IT Act. This category of an order can only be passed “for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the 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.” At the very outset the applicability of this provision has been limited to “messaging” SMI’s like WhatsApp, and others. Therefore it is unclear whether this rule would apply to social media platforms where the primary feature is posting, uploading and sharing content along with messaging services such as – Twitter or Facebook. Nevertheless, even if prima facie, it appears that sufficient safeguards have been provided, the Rules will still pose problems at several levels.
The “public order” ground can be used by the Government to curb “anti-government” information. With the advent of these rules, every WhatsApp user would now have to think twice before sending a message. This “public order” ground appears to be suspect from a freedom of speech and right to privacy perspective. It remains to be seen whether the Government will invoke this provision to arbitrarily restrict free speech. This provision also enables the government to intrude upon the privacy of the citizens and their private communications.
Automated Filtering
The requirement of automated filters to be deployed by SSMI’s to identify, moderate or remove ‘illegal’ content on any social media platform has the potential for operating as a restriction on the constitutional guarantee of free-speech and expression. It may also result in ‘pre-censorship’. Further, intermediaries are also mandated to take down specific categories of content in 24 hours and share information with the law enforcing agencies within 72 hours. This, however, is not sufficient time to analyse such requests, seek clarifications or remedies.
User verification
Verifying the users through Mobile Number and providing them a badge or mark alongside their name would definitely reduce cases where people create fake accounts in other’s name and then commit frauds. Asking for user’s consent for using the information provided by them for other purposes would definitely have a positive impact on blanket privacy. But if any information is posted by a user which is contrary to the provisions of the IT Rules, 2021, it is liable to be ordered to be removed immediately. This can be unfair as the user must be given an appropriate opportunity of being heard.
Conclusion
The IT Rules, 2021 are expected to have far-reaching consequences in the digital space. Intermediaries, including social media, would be bound by the new regulations which may have an impact on users’ free speech and privacy. Therefore these Rules which would ordinarily seem to bring order to a medium need to be moderated in their implementation. Whether the government will itself exercise such moderation or whether the courts will have to step in and require it, remains to be seen. Without judicial oversight, these IT Rules, 2021 can be another tool in the hands of the government to use law enforcement agencies to go after individuals who express opinions against the ruling dispensation.
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Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.
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