IT Rules Revised in 2021, What's In It For Your Business Compliance Needs?

The general population relies on social media for news, entertainment, and other purposes in the digital age. People’s reliance on social media is extremely risky at this time because of the great potential of abuse. As a result, strict restrictions for any type of information exchange via intermediaries were deemed to be necessary. The Ministry of Electronics and Information Technology responded by releasing the proposed Information Technology (Intermediary Guideline) Rules, 2018, for public comment. As a result, the government issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on February 25th of this year. The Information Technology (Intermediaries Guidelines) Rules of 2011 have been replaced by the 2021 Rules. The previous set of regulations, which applied solely to intermediaries. The new Rules also expanded the scope of intermediary monitoring by putting online news content and over-the-top (“OTT”) platforms within its jurisdiction. Now, before diving into the new IT rules, it’s critical to take a short look at the process or the many key choices that lead to the creation of the new IT rules. The general population relies on social media for news, entertainment, and other purposes in the digital age. People’s reliance on social media is extremely risky at this time because of the great potential of abuse. As a result, strict restrictions for any type of information exchange via intermediaries were deemed to be necessary. The Ministry of Electronics and Information Technology responded by releasing the proposed Information Technology (Intermediary Guideline) Rules, 2018, for public comment. As a result, the government issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on February 25th of this year. The Information Technology (Intermediaries Guidelines) Rules of 2011 have been replaced by the 2021 Rules. The previous set of regulations, which applied solely to intermediaries. The new Rules also expanded the scope of intermediary monitoring by putting online news content and over-the-top (“OTT”) platforms within its jurisdiction. Now, before diving into the new IT rules, it’s critical to take a short look at the process or the many key choices that lead to the creation of the new IT rules. BACKGROUND Of IT RULES The Indian government may design essential rules to remove child pornography, rape and gang rape imageries, videos, and sites in content hosting platforms and other apps, according to the Supreme Court of India in 2018. The Rajya Sabha’s Ad-hoc committee on social media pornography and its impact on minors and society as a whole delivered its findings in 2020. The study suggested that the source of such information be tracked down. The GOI also brought OTT services under the Information and Broadcasting Ministry’s purview in 2020. THE NEW INFORMATION TECHNOLOGY RULES The new Rules were enacted under the Information Technology Act of 2000’s Sections 69A(2), 79(2)(c), and 87. The previously established Information Technology (Intermediary Guidelines) Rules 2011 have been superseded by these new rules. 1) The Rules are designed to give users of social media and over-the-top (OTT) platforms a reliable way to voice their complaints. 2) They lay a specific emphasis on protecting women and children on social media from sexual offences. 3) The guidelines emphasize the need for online content providers and social media intermediaries according to the country’s Constitution and domestic laws. With these laws, India joins other international regimes that regulate digital media and offers a complete digital media consumers’ protection system. Intermediaries, according to the new guidelines, are entities that facilitate access to the internet or internet-based services. Internet service providers, social media networks, and search engines, for example. The intermediaries, on the whole, take a passive approach to the material they offer or host. Countries are urged to implement safe harbour provisions, which exclude intermediaries from criminal responsibility because they do not have editorial control over the material. The safe harbour protections have been outlined in India under Section 79 of the Information Technology Act. 1) Under the new guidelines, intermediaries must exercise due diligence.  The safe harbour protections would not apply to the intermediary if due diligence was not undertaken, according to the new guidelines. 2) A mandatory grievance redress system  Intermediaries must select a Grievance Officer to handle complaints and provide the officers’ names and contact information.  Within 24 hours, this officer should acknowledge the complaint and fix the issue within 15 days. 3) Ensure user safety and dignity when using the internet.  Within 24 hours after receiving a complaint, intermediaries shall delete or deactivate content that exposes partial or complete nudity, sexual acts, altered pictures, and so on.  Persons or anybody acting on behalf of individuals can make complaints of this sort. 4) For major social media intermediaries, further due diligence is required.  They must name a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer, all of whom must be Indian citizens.  They should issue a monthly compliance report that lists all of the complaints they’ve received.  Establishing the identity of the message/originator content. i. Such intermediates that primarily provide messaging services must be able to identify the first source of the information. ii. This identification is for the purpose of preventing, detecting, investigating, prosecuting, or punishing an offense related to India’s sovereignty and integrity, security, friendly relations with foreign states, or public order, or in relation to rape, sexually explicit material, or child sexual abuse material that is punishable by imprisonment for not less than five years. iii. In this case, social media intermediaries that provide message services will be tasked with assisting law enforcement authorities in identifying and tracking the initial source of any controversial or problematic material. iv. This can only be carried out by a competent court or the Competent Authority pursuant to Section 69 of the Act, and it should only be used as a last option.  Unlawful removal of data i. After receiving actual knowledge in the form of a court order or notification from the appropriate government or its agencies through an authorized officer, an intermediary should not host or publish any information that is prohibited under any law in the interest of India’s sovereignty and integrity, public order, friendly relations with foreign countries, and so on. Platforms for over-the-top (OTT) content OTT platforms are now referred to as “publishers of online curated content” under the new guidelines. They’d have to divide the information into five age groups on their own. – U (Universal) – 7+ U/A – 13+ U/A -16+ U/A -A+ (Adult) For content categorized as U/A 13+ or above, OTT platforms would be obliged to include parental lock mechanisms, as well as an age verification method for content classed as ‘Adult.’ Before the program begins, the content’s classification should be publicly presented so that consumers may make educated judgments based on appropriateness. Along with the rating, a viewer discretion notice should be included in the content’s description, if relevant. The mechanism for resolving complaints – A three-tiered grievance resolution system with varying levels of self-regulation has been mandated. They are as follows: 1) Level I: Publishers’ self-regulation 2) Level-II: Self-regulation by the self-regulating bodies of the publishers 3) Level-III: Oversight mechanism Advantages of new rules The Rules must be credited since they impose responsibilities such as: 1) Within 24 hours, non-consensual intimate photos will be removed. 2) To improve openness, compliance reports should be made public. 3) Creating a framework for resolving content removal disputes, 4) Users will be able to tell if the material is promoted, owned, sponsored, or completely controlled by adding a label to it. Problems With the Rules 1) Ultra-vires Rules to the IT Act: The IT Act of 2000’s purview has been enlarged to include digital news media under its regulatory scope without legislative action, which is cause for serious worry. There has been some criticism of enacting a slew of new rules that should typically only be activated by legislation. 2) Denial of Due Process: After obtaining orders from the government, an intermediary is now required to remove information within 36 hours. This deprives the intermediary of a just remedy if it disagrees with the government’s order owing to a tight deadline. 3) Undermining Free Speech: The restrictions stifle free expression by establishing the government as the final arbiter of offensive internet speech. 4) Issue of Traceability: Until now, users of social media platforms had had the benefit of end-to-end encryption, which meant that intermediaries did not have access to the contents of their conversations.  Imposing this required traceability requirement will breach this immunity, compromising the security of these communications’ privacy.  The danger here is not just one of privacy, but also of invasion and deprivation of a secure environment. 5) Counterproductive in the Absence of a Data Privacy Legislation: It might be counterproductive in a country where citizens are still without a data privacy law to protect them from any party’s abuses. 6) Burden of Compliance: By forcing intermediaries to have Indian resident nodal officers, compliance officers, and grievance officers, the Rules increase unnecessary operating expenditures. All of this has stirred up the hornet’s nest that is India’s regulatory grip on online activities. In the interest of free-market systems, government’s intervention is sometimes being constructed as an obstruction and not as a necessary step to curb wrongdoings on the online ecosystem within India’s jurisdiction. Overall, the impact of this case will reveal itself in due course of time.

IT Rules Revised in 2021, What’s In It For Your Business Compliance Needs?

BySayon Bhattacharya

By Sayon Bhattacharya

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