The Ministry of Electronics and Information Technology, vide gazette notification G.S.R. 139(E) dated February 25, 2021, has notified the coming into force of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Rules”). The Rules have been issued under Section 87 of the Information Technology Act, 2000 (“IT Act”) and replace the Information Technology (Intermediary Guidelines) Rules, 2011. Section 87 of the IT Act empowers the Government to frame rules, inter alia, for procedures and safeguards for blocking public access to internet content and guidelines that are to be followed by intermediaries.

Objectives of the Rules:

The Rules seek to regulate intermediaries, including social media intermediaries, online publishers of news and current affairs content, and online curated content. The Rules also seek to penalise the dissemination of fake news or defamatory online content. Part II of the Rules, which deals with the regulation of intermediaries, shall be administered by the Ministry of Electronics and Information Technology. Part III of the Rules, which deals with the regulation of digital news media, shall be administered by the Ministry of Information and Broadcasting.

Social Media Intermediaries:

An ‘intermediary’ is defined under Section 2(1)(w) of the IT Act in the following manner:

“Intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes;

The Rules classify social media platform intermediaries (such as Twitter, Facebook etc.) based on the number of users that use the platform. A ‘social media intermediary’ is defined as an intermediary which primarily or solely enables online interaction between 2 (two) or more users and allows them to create, upload, share, disseminate, modify or access information using its services. A ‘significant social media intermediary’ is defined as a social media intermediary that has a number of registered users in India that fall above a threshold notified by the central government.

Intermediaries, including social media intermediaries and significant social media intermediaries, are now required to follow due diligence requirements prescribed under the Rules, with significant social media intermediaries and news and current affairs content intermediaries requiring to comply with additional and specific due diligence requirements. These due diligence requirements are a form of ‘safe harbour’, since compliance with these requirements in the Rules and the conditions prescribed by Section 79 of the IT Act would keep the intermediary safe from liability for any third party information, data, or communication link made available or hosted by the intermediary. The safe harbour provision under Section 79 will apply only if the intermediary has not (i) initiated the transmission, (ii) selected the receiver of the transmission, or (iii) selected or modified the information contained in the transmission, as prescribed under Section 79(2)(b) of the IT Act.

Removal of unlawful content:

If an intermediary receives actual knowledge of a court order or is notified by any Governmental agency of any unlawful content hosted or stored by the intermediary, such intermediary is required to remove or disable access to that information, as early as possible, but in no case later than 36 (thirty six) hours from receipt of the court order or notification from the Government or its agency. If an intermediary receives a complaint from an individual, or any person on his behalf, regarding content which depicts full or partial nudity or any sexual act or conduct, or involves artificially morphed images, and such content is meant to harass, intimidate, threaten or abuse an individual, the intermediary is required to take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it within 24 (twenty four) hours from the receipt of such complaint.
Where an intermediary receives a lawful order from any Governmental agency for information under its control or possession, or a request for assistance by the Government agency for purposes including the verification of identity, or for the prevention, detection, investigation, or prosecution, of offences under any law for the time being in force, or for cyber security incidents, the intermediary must comply expeditiously and in any event no later than 72 (seventy two) hours of the receipt of the order.

Every intermediary is required to periodically notify its users, at least once every year, of (i) any change in applicable rules and regulations, terms or use or privacy policy, and (ii) the consequences of non-compliance with such rules or terms or policy.

Grievance Redressal:

The Rules require intermediaries to appoint a ‘Grievance Officer’ who is responsible for acknowledging complaints within 24 (twenty four) hours and resolving them within a 15 (fifteen) day timeline. The Grievance Officer is also responsible for the receipt and acknowledgement of any order, notice or direction issued by a government, authority or court of law. Significant social media intermediaries are additionally required to appoint (i) a ‘Chief Compliance Officer’ who is responsible for ensuring compliance with the Act and Rules; (ii) a nodal person of contact for “24x7 coordination” with law enforcement agencies; and (iii) a ‘Resident Grievance Officer’ with responsibilities similar to the Grievance Officer. All three officers are required to be residents in India.

Data Retention:

Intermediaries are required to preserve user data for 6 (six) months for investigative purposes, irrespective of whether a user has cancelled or withdrawn their account. Further, significant social media intermediaries providing services primarily in the nature of messaging must enable tracing of the first originator of information on their platform, if required to do so by a court of law or a competent authority under the Act.

Digital News Media and Video Streaming Platforms:

The Rules have been made applicable to all publishers of news and current affairs content through digital media, provided they have a physical presence in India or conduct systematic business activity/ make their content available in India. This implies that foreign news media will also fall under the ambit of the Rules.

‘News and current affairs content’ has been defined to include newly received or noteworthy information, including analysis, especially about recent events primarily of socio-political, economic or cultural nature, available over the internet or computer networks.  A ‘publisher of news and current affairs content’ has been defined to mean an online paper, news portal, news aggregator, news agency and such other publishers of news and current affairs content by whatever name called, but does not include newspapers, replica e-paper of the newspaper and any user generated content which is not transmitted in the course of systematic business activity. ‘Online curated content’ has been defined to mean any curated catalogue of audio-visual information, other than news and current affairs content, made available on demand, including but not limited through subscription, over the internet or computer networks, and includes films, television programmes, serials, podcasts and other such information. A ‘publisher of online curated content’ has been defined to mean a publisher who performs a significant role in determining the online curated content being made available and makes available to users a computer resource that enables access to online curated content over the internet or computer networks, but does not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity.

Digital news media and Over-the-Top (“OTT”) platforms (predominantly video streaming services) are required to adhere to a code of ethics that are provided in the appendix to the Rules. OTTs are required to classify content based on age categories and have a reliable age verification mechanism for viewership of age restricted content. The Rules also require OTTs to ‘exercise due caution and discretion’ while featuring activities, beliefs, practices or views of any racial or religious groups. OTTs are encouraged to self-regulate, with the Rules establishing a three tier grievance redressal mechanism: (i) digital news media and OTTs must establish a grievance officer resident in India, who will be required to decide on complaints within 15 (fifteen) days of receiving the complaint. If the complainant does not receive a satisfactory response they may appeal to the second tier; (ii) a self-regulating independent body consisting of publishers and their associations, headed by a retired judge of the Supreme Court of India or High Court or an eminent person from allied fields will be constituted. The body must be registered with the government, subject to it being satisfied that the body has been constituted properly. The body has the power to warn/censure the publisher, demand apologies or censor consent as it deems fit. If a publisher fails to comply, the matter may be referred to the third tier; (iii) The oversight mechanism under tier three consists of an inter-departmental committee of government officials. The committee may hear complaints from the other tiers and is empowered to delete or modify content to prevent incitement to the commission of cognizable offences relating to public order.

Please find a copy of the Rules here.

This update has been contributed by Vinod Joseph (Partner), Suchita Ambadipudi (Partner) and Pranav Valiathan Pillai (Associate).