The story so far: On Thursday, in a long-anticipated move, the government notified guidelines that seek to provide a grievance redressal mechanism for users of digital platforms of all kinds — social media sites, messaging apps, over-the-top (OTT) streaming services , and digital news publishers. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 also mandate that social media and messaging platforms will have to adhere to new requirements in assisting investigative agencies of the government. Launching the guidelines, Electronics and Information Technology Minister Ravi Shankar Prasad said they were a “soft-touch oversight” mechanism to deal with issues such as the persistent spread of fake news and other misinformation.
Broadly, what do the new rules require digital platforms to do?
Although there is no single set of rules that uniformly applies to the different kinds of digital platforms, the broad themes of the guidelines revolve around grievance redressal, compliance with the law, and adherence to the media code. Social media platforms like Google or Facebook, or intermediaries, for instance, will now have to appoint a grievance officer to deal with users’ complaints. There are additional requirements on ‘significant’ social media intermediaries — meaning the platforms whose registered users in India are above the threshold notified by the government. Such intermediaries have to appoint a ‘Chief Compliance Officer’, who will have to ensure that the rules are followed; the officer “shall be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary”. The intermediaries will also have to appoint a nodal contact person for “24x7 coordination with law enforcement agencies”.
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The other key requirement is that such a social media intermediary would have to “enable the identification of the first originator of the information on its computer resource” as may be required by a judicial order. In other words, a problematic message, that is considered “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”, will have to be traced to its initiator on messaging applications like WhatsApp and Signal.
For digital publishers of news and current affairs as well as video streaming services, an identical three-tier structure for grievance redressal has been mandated. This structure will look into grievances in relation to a Code of Ethics, which is listed in the appendix to the rules. Among other things, the Code of Ethics includes the ‘Norms of Journalistic Conduct’ as prescribed by the Press Council of India, as also content that shall not be published — “content which is prohibited under any law for the time being in force shall not be published or transmitted”, and the Programme Code under the Cable Television Networks (Regulation) Act, 1995. The guidelines also require streaming services to classify content based on its nature and type. So, for instance, content “for persons aged 16 years and above, and can be viewed by a person under the age of 16 years with parental guidance shall be classified as U/A 16+”.
What is the context in which these rules have been framed?
The question of stricter regulation of digital media has come up unceasingly in different forms and forums over the last few years. The issue came up last year when the Supreme Court was hearing a case involving Sudarshan TV . In the course of the case, it asked the government for suggestions to improve the self-regulatory mechanism for electronic media. The government, in its affidavit, highlighted the need to regulate web-based media.
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There has also been a face-off between the government and Twitter in recent weeks over the social media platform’s non-compliance with its order to block several hashtags and handles of journalists, activists and politicians in the backdrop of the ongoing farmers’ protests. Twitter eventually complied, though not fully.
Questions about how social media platforms can be made accountable for the spread of fake news and pornographic content have been raised in Parliament and by the Supreme Court in recent years, something that has been highlighted by the government in its release as well. Taking all this into account, it was no surprise that such rules were being envisaged, but critics have said some of these guidelines will lead to restriction of free speech. There have been many controversies involving content on over-the-top platforms. In one such recent incident, two BJP leaders filed a case against the makers of Tandav for hurting religious sentiments. There have been calls to censor content that appears on digital platforms.
What has changed from earlier?
The scope of regulation of the digital space has been expanded. The new guidelines not only replace the Information Technology (Intermediaries Guidelines) Rules, 2011, but go a step further. They also regulate digital news publishers and streaming services, which was not the case earlier. The 2011 rules were a narrower set of guidelines for intermediaries.
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Under Section 79 of the Information Technology Act , the intermediaries are not liable for user-generated content, provided they adhere to the rules — “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him,” it states. These rules have been tightened now.
Why are the rules being criticised?
For digital news media, these guidelines will subject it to governmental regulation in a way. The three-tier structure of regulation will entail oversight by a government committee at the highest level. Any grievance that does not get satisfactorily solved at the self-regulatory levels will get escalated to the government panel. The Internet Freedom Foundation (IFF), a digital liberties organisation, refers to this as “excessive governmental control over digital news and OTT content” .
The other rule that has been criticised by the IFF is the requirement of traceability of the originator of a problematic message. The news guidelines do suggest that this will not be required “where other less intrusive means are effective in identifying the originator of the information”. They also suggest that in identifying the originator, “no significant social media intermediary shall be required to disclose the contents of any electronic message”. But the IFF reckons that the government has powers under the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, to make demands for the content of the messages. The rules have also been criticised for increasing the potential for censorship and surveillance.
