On February 25, 2021, the Government of India notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“the 2021 Rules”) under the Information Technology Act, 2000 (“the IT Act”). These Rules replace the earlier Rules called the Information Technology (Intermediaries Guidelines) Rules, 2011 (“the 2011 Rules”).
Section 79 of the IT Act exempts internet intermediaries from liability in relation to any third-party information, data or communication link made available by them if they have no knowledge of the content passing through or stored on their servers. However, once they have knowledge of such content, they are obliged to act diligently to disable access to or remove such content. The 2011 Rules were issued in pursuance of Section 79.
The 2021 Intermediary Rules
The 2021 Rules are divided up into three Parts. Part I contains definitions of the terms employed. Part II, administered by the Ministry of Electronics and Information Technology, sets out the rules for due diligence by intermediaries. Part III, administered by the Ministry of Information & Broadcasting, deals with the regulation of Digital News Media (DNM) and Over the Top (OTT) platforms such as Netflix, Amazon Prime, Disney-Hotstar etc.
Social Media and Messaging Intermediaries
Under the definitions in Part I of the 2021 Rules, two classes of intermediaries are defined respectively in subrules (y) and (z) of Section 2, namely, ‘Social Media Intermediary’ and ‘Significant Social Media Intermediary’.
“Social Media Intermediary” (SMI) is defined to mean an intermediary which primarily or solely enables online interaction between two or more users. SMIs are participative networked platforms (e.g., Facebook, Twitter, Linkedin), instant messaging services (e.g., WhatsApp, Telegram), file sharing services (e.g., Youtube, Vimeo, DailyMotion). Excluded from the definition of SMIs are intermediaries which primarily:
(i) enable commercial or business-oriented transactions (E.g., Amazon);
(ii) provide access to internet or computer networks (E.g., Airtel); and
(iii) are in the nature of a search-engine, online encyclopaedia, online directory or suggestion tool, email service or online storage service.
“Significant Social Media Intermediary” (SSMI) means a social media intermediary which has above five million registered users.
General Obligations to be complied with by all intermediaries
While retaining most of the general obligations contained in the 2011 Rules, Part II of the 2021 Rules have introduced certain new or recast obligations:
• Rule 3 (4) in the 2011 Rules has been recast. Now a court order is required to constitute actual knowledge for notice and take down with regard to the subject matters falling under Article 19 (2) of the Constitution of India (the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court and defamation or incitement to an offence). This is consistent with the 2015 judgement of the Indian Supreme Court in Shreya Singhal v. Union of India.
• The 2011 Rules required an intermediary to: (i) display full contact details of its Grievance Office and the mechanism available for a user or victim to complain against violation of the general obligations; and (ii) redress the complaint within one month of receipt. The 2021 Rules now require the Grievance Officer to be additionally responsible for:
(i) acknowledging the complaint within three working days;
(ii) receiving and acknowledging any order, notice, or direction issued by the appropriate government or any court of competent jurisdiction.
(iii) taking all reasonable and practical measures within 24 hours of a complaint to disable or remove any content complained of which is prima facie in the nature of non-consensual transmission of any material:
o with an intent to harass;
o which exposes the private area of any person;
o which shows such person in full or partial nudity;
o which shows or depicts such person in any sexual act or conduct; or
o which is in the nature of impersonation in an electronic form including artificially morphed images.
• The Intermediary must inform all its users once in a year of any changes in its User Agreement.
Additional Due Diligence Obligations to be observed by SSIM
• Within three months from February 26, 2021, an SSIM must:
(i) appoint an India based Chief Compliance Officer of Indian origin for ensuring compliance with the IT Act and the Rules. Such officer will be liable for any proceedings for failure for compliance with these Rules;
(ii) appoint an India based Nodal Contact Person of Indian origin for 24x7 coordination with law enforcement agencies to ensure compliance with their orders or requisitions;
(iii) appoint an India based Resident Grievance Officer of Indian origin with responsibilities similar to those of the Grievance Officer for intermediaries in general. However, the Resident Grievance Officer is under obligation (unlike his counterpart for general intermediaries) to provide an opportunity to the user who has uploaded the content complained of to dispute the action being taken and furnish the reasons for the decision taken to disable or remove the content;
(iv) publish monthly compliance reports on the take-downs pursuant to complaints or suo motu proactive filtering steps; and
(v) maintain a physical contact address in India and publish its details on its website for purposes of receiving communications addressed to it.
• An SSIM must enable identification of the first originator of any information on its computer resource pursuant to an order of a court or the competent authority under the Act, provided:
(i) such information relates to an offence or any incitement thereof affecting the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, or in relation to rape, sexually explicit material or child sexual abuse material punishable with a prison term of not less than five years;
(ii) no other less intrusive means are effective in identifying the originator;
(iii) the messaging intermediary is not required to disclose the content of the message or any information related to its other users;
(iv) in case of the first originator being located outside India, the first originator in India would be deemed to be such for the purpose of this compliance.
• An SSIM must endeavour to deploy technology-based measures including automated tools or other mechanisms to proactively identify any content depicting rape, child sexual abuse or conduct, whether explicit or implicit or any content which is exactly identical to a previously disabled content relating to the Article 19 (2) subject matter. The intermediary shall display a notice to this effect for any user attempting to access such disabled information.
• A significant social media intermediary shall enable its users registered in India or using its services in India to voluntarily verify their accounts by using any appropriate mechanism including active mobile numbers. All such registered users will be provided a demonstrable and visible mark of verification.
• Non-compliant intermediaries are liable for punishment under the IT Act, the Indian Penal Code or any other law for the time being in force.
DNM and Video Streaming Platforms
Part III of the 2021 Rules regulates OTT Streaming Platforms and DNM platforms operating in India or conducting a structured or organised activity in India. OTT platforms operating in India are now required to adhere to the Code of Ethics, which sets-out the following legal duties with regard to “Online Curated content”:
• OTT platforms shall not transmit or publish any content which is prohibited under any law for the time being in force, considering the various categories of the Article 19 (2) subject matter and India’s multi-racial and multi-religious contexts.
• While transmitting any content, OTT platforms shall follow a self-regulated content classification based on (i) the themes and messages, (ii) violence, (iii) nudity, (iv) sex, (v) language, (vi) drugs and substance abuse; and (vii) horror as laid down in the Rules.
• Grievance Redressal Mechanism: To ensure adherence to the Code of Ethics, the Rules have introduced a three-tier mechanism involving the following escalating steps:
(i) Tier I: The DNM and OTT platforms must appoint an India-resident Grievance Officer with a mandate to take a decision on a complaint within 15 days.
(ii) Tier II: If the Grievance Officer fails to act within the stipulated 15 days, the aggrieved person is entitled to escalate the matter to the self-regulating body. Such self-regulating body shall be headed by a retired judge of the Supreme Court, a High Court and an independent eminent person from the field of media, broadcasting, entertainment, child rights or human rights with six other members drawn from these fields;
(iii) Tier III: If the complainant is not satisfied with the decision of the self-regulating body, it may prefer an appeal within 15 days to the Oversight Mechanism which is an Inter-Departmental Committee headed by a Joint Secretary of the Ministry of Information & Broadcasting and consisting of representatives from several other Ministries.