October 27, 2021

Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021- Progressive or Preventive?


The guidelines have been brought by the government to regulate the digital media platforms including social media platforms, online news portals and OTT platforms. The authorities have stated that the rules are progressive in nature, but a detailed view of the rules brings a question of whether the rules are progressive or preventive in nature.
Since the time of its inception the law has faced several barriers coming from the individual citizens as well as the different organizations who have been affected by such laws. The laws came into force on February 25,2021 and replaces the Information Technology (Intermediaries Guidelines) Rules, 2011.

There are several areas upon which the set rules have put their focus.

The first includes the diligence that the rules have put on the intermediaries which includes the Internet and the telecom service providers as well as the social media platforms. They have been directed to inform the users about the existing laws of the land and to block any access of unlawful information within 36 hours of receipt from order from the court or the government and are also required to retain information for a period of 180 days of their users.

Another aspect which draws our attention is the significance of the social media intermediaries. They are required to appoint the chief compliance officer to ensure compliance with the rules and of grievance of a search and are also required to publish a compliance report.

One of the most striking feature of this rule is that it requires the intermediaries to collect the name of any originator of any information which has been published on their platform and the same must be disclosed if there is an order from the court or the government.

Grievance redressal the rules require that the Complaints must acknowledge within a period of 24 hours and must be disposed of within 15 days and to ensure the same there must be a proper grievance redressal mechanism the digital media publishers have to have a three tier grievance redressal. The bottom of the tier there is a self-regulation by the publishers which is followed by the self-regulation of the self-regulating body of the publishers and will be headed by the oversight mechanism by the central government. The oversight mechanism involved in the departmental committee which will be headed up by any retired judge of High Court or Supreme Court or by any eminent person. The rules also put forward the blocking of any content in case of emergency and the same content may be put to examination by the secretary of the Ministry of Information and Broadcasting.

India provides a for a good opportunity for various social media intermediaries to do business in India. But for the past few years has been not only seen a growth in using the social media and digital platforms but have also faced numerous problems relating to the same some of which would include violence against women or in the name of caste religion community. The spreading of fake news and rumors in the social media has also been a problem and to efficiently solve all these problems and to enhance the digital platforms the government has brought out these rules. These rules are believed to be soft touch progressive institutional mechanism and will also help in field playing.

Since inception of these rules, it has faced several criticisms. There have been numerous claims that the rules are against the right to privacy of the individuals.

The Supreme Court has clearly stated that the rules are nearly a set of guidelines and are “lacking in teeth”. The remark has been made while granting protection from arrest to Amazon Prime Video’s India head Aparna Purohit. The court has also stated that the rules are lacking in relation to controlling the different social media platforms and for prescreening off content and prosecuting the offenders. The court has also stated that the focus of the government should be on the on screening of content as there are many platforms which are showing pornographic content and there has been no such rules to control the same. The Central government has given an assurance that they will work towards making the laws stringent.

The recent criticism of the rules was taken up in the case where it was regarded as arbitrary, illegal and were in sharp contradiction to articles 14, 19 and 21 of the constitution and the issue of safe harbor. Recently a PIL was filed before the Honorable High Court of Bombay recently by Senior journalist Nikhil Wagle and legal news portal Leaflet. The PIL stated that the rules would have an upsetting effect on the freedom of speech. Petitioners stated that the rules were also against the principle of net neutrality which provides for equality in web traffic and stated that the rules even though has come for making the process progressive in nature but in turn is preventive and one of the instances is that of Preventive Journalism. The journalists must show the originator of the content and the rules have failed to draw a line between what is “fair and crass”. The petition has also dealt with the previous matters as well as the different social media portals’ complaint. Petition clearly stated that the rules allowed the social media platforms to use artificial intelligence to access any sort of data communication which is in gross violation to the Right to Privacy.

The problems that the different messaging applications like WhatsApp and Twitter have been facing are in relation to the issue of traceability. WhatsApp has stated that the clause of traceability that is present in the rules is against their principle of end-to-end encryption of consumer data which has been brought into effect to preserve the privacy of their consumers. WhatsApp has clearly stated that implementing the traceability clause would not only mean changing the entire process of the functioning of the app only for India which is practically impossible for them but also would mean harming the right to privacy as well as the freedom of speech and expression. Another social media platform Twitter has been in the news headlines due to the tussle that has been going between them and the government. But eventually the fight has come to an end and Twitter has decided to comply with all the guidelines.

The inefficiency and ineffectiveness of the rules is clear not only from the numerous legislations and criticisms that have come up but also from the fact that the United Nations has clearly stated that the rules do not comply with the International Human Rights particularly with Article 17 and 19 of the ICCPR. It has been clearly stated that the rules are against the rights of freedom, expression and privacy.

The social media platforms, OTT platforms and the online news of portal did not have a legislation till date and the bringing of the new guidelines are a step towards regulating the same. The increase in the online abuse called for a faster resolution of the problem. It is needless to mention over here that the legislation had been framed keeping in mind the advancement of the technology and the huge impact such intermediaries will be having in the future. The laws have been framed for the progress of the society, but it is indeed saddening and upsetting to note that there have been several clauses in the rules itself which makes it rather preventive for not only the intermediaries but also the public at large. The Right to Freedom of Speech and Expression and now the Right to Privacy is one of the most important Fundamental Rights that is guaranteed by the Constitution of India and to some extent these laws may violate the same. If that is the case, then these laws will be regarded as ultra-vires. Moreover, these laws not being able to solve the problem of pornography in totality calls for an immediate change whereby certain prescreening provisions will be introduced.

The Central Government while stating that they will try for making the laws stringent is an indication that there are certain flaws in the laws which needs clarification at the earliest to make these laws progressive in nature. A certain amount of discussion with other stakeholders regarding the consequences of the laws may help in achieving the goal. India, being one of the largest democracies stand a chance to stand out in the world by making laws governing such intermediaries the first of its kind.

Note: The opinions are personal to the author, if any.

This article has been contributed by Debashruti Sanyal of National Law University, Odisha.