IT Rules 2021 | New Social Media Rules in India | Whether Social Medias will be banned?

 

There are lot of confusions going on relating to the newly introduced IT Rules 2021 which has come on 25^th February, 2021 and since 25^th May, 2021 there are lot of gossips and fake news going on and the questions before the people of India at large are:

 

Whether Facebook, Twitter, WhatsApp etc. social medias going to be banned?

Whether our private call, chat etc. data are read secretly without our permission?

What is there in IT Rules,2021 or Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021?

 

As per Press Information Bureau, Government of India, we find the following statistics:

The Users of various significant social medias: -

•       WhatsApp users: 53 Crore

•       YouTube users: 44.8 Crore

•       Facebook users: 41 Crore

•       Instagram users: 21 Crore

•       Twitter users: 1.75 Crore

 

RECENT CASES –

In one recent case i.e. FACEBOOK INC. VERSUS UNION OF INDIA & ORS., the issue relating to how and in what manner the intermediaries should provide information including the names of the originators of any message/content/information shared on the platforms run by these intermediaries and decryption of end-to-end encrypting chat-messengers who are to provide data in time of investigation etc. were raised and the question of any Rule to that effect was also discussed.

 

Making of the Rule…….

The Central Government introduced Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 due to –

Ø  Large scale proliferation of social media by empowering the citizens and simultaneously rise of serious concerns and consequences which have grown manifold in recent years.

Ø  Continuous spreading of fake news, abuse of social media in many ways attacking women by way of revenge porn, rivalries in abusive language, defamatory and obscene contents and blatant disrespect to religious sentiments.

Ø  Skyrocketing misuse of social media by criminals, anti-national elements.

Ø  Lack of control on OTT platforms, web series, etc.

Key Features of the IT Rules 2021 -

As per PIB, Government notifies Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 for the following purposes –

 

v  Social media platforms were welcome to do business in India but they need to follow the Constitution and laws of India

v  Social media platform can certainly be used for asking questions and criticism.

v  Social media platforms have empowered ordinary users but they need accountability against its misuse and abuse

v  The new Rules empower ordinary users of social media, embodying a mechanism for redressal and timely resolution of their grievance

v  Rules about digital media and OTT focuses more on in-house and self-regulation mechanism whereby a robust grievance redressal mechanism has been provided while upholding journalistic and creative freedom

v  The proposed framework is progressive, liberal and contemporaneous

v  It seeks to address peoples’ varied concerns while removing any misapprehension about curbing creativity and freedom of speech and expression.

v  The guidelines have been framed keeping in mind the difference between viewership in a theatre and television as compared to watching it on Internet.

 

• Who have to comply the rule, 2021: Digital Media Including An Intermediary; Or A Publisher Of News And Current Affairs Content Or A Publisher Of Online Curated Content;
• Significant Social Media Intermediary;
• Social Media Intermediary;
• Publisher Of News And Current Affairs Content;
• Publisher Of Online Curated Content;
• Intermediary In Relation To News And Current Affairs Content;
• OTT Platforms And Publishers Of Films And Other Entertainment Programmes, Including Web Based Serials.

 Various Parts of the Rule relating to Executing Authority:

The Rule has following three parts:

i)                    PART I: PRELIMINARY.

ii)                   PART II: DUE DILIGENCE BY INTERMEDIARIES AND GRIEVANCE REDRESSAL MECHANISM.

iii)                 PART III: CODE OF ETHICS AND PROCEDURE AND SAFEGUARDS IN RELATION TO DIGITAL MEDIA.

Needless to say, Part- II of these Rules shall be administered by Ministry of Electronics and IT, while Part-III shall be administered by the Ministry of Information and Broadcasting.

PART II: DUE DILIGENCE BY INTERMEDIARIES AND GRIEVANCE REDRESSAL MECHANISM

The present much-discussed law has its strong background in the following laws of India:

Section 5(2) of Indian Telegraph Act 1885 : Power for Government to take possession of licensed telegraphs and to order interception of messages.

ü Section 69 of Information Technology Act, 2008 :

Power to issue directions for interception or monitoring or decryption of any information through any computer resource.

ü Section 69A of Information Technology Act, 2008 :

Power to issue directions for blocking for public access of any information through any computer resource.

ü Section 69B of Information Technology Act, 2008 :

Power to authorise to monitor and collect traffic data or information through any computer resource for cyber security.

In this present IT Rules 2021, we can find Digital Media Ethics Code concerning Digital Media and OTT Platforms which is to be administered by Ministry of Information and Broadcasting.

 For example, the OTT platforms have to classify their contents in terms of age as follows

Ø  U (Universal),

Ø  U/A 7+,

Ø  U/A 13+,

Ø  U/A 16+, and

Ø  A (Adult).

 

Three-level Grievance Redressal Mechanism:

For ensuring observance and adherence to the code Ethics by publishers operating in the territory of India, and for addressing the grievances made in relation to publishers under this Rule, there shall be a three-tier structure as under –

Ø  Level-I: Self-regulation by the publishers;

Ø  Level-II: Self-regulation by the self-regulating bodies of the publishers;

Ø  Level-III: Oversight mechanism by the Central Government

 

72 Hrs. Compliance to provide data to Government Agencies:

 

Intermediary shall, as soon as possible, but not later than seventy-two hours of the receipt of an order, provide information under its control or possession, or assistance to Government agency.

 

24 Hrs. to remove obscene materials etc.:

 

As per the Section 3(2)(b) of this Rule, the intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual, take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it.

 

Some important provisions:

 

Rule 3(1) : What should not be published etc.

As per Rule 3(1) the intermediary shall not host, display, upload, modify, publish, transmit, store, update or share any information that,

(i)       belongs to another person and to which the user does not have any right;

(ii)      is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;

(iii)    is harmful to child;

(iv)    infringes any patent, trademark, copyright or other proprietary rights;

(v)      violates any law for the time being in force;

(vi)    deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;

(vii)  impersonates another person;

(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation;

(ix)    contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;

(x)      is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;

It is further to be mentioned that as per the Rule 3 of IT Rules 2021, intermediaries have to preserve Evidence or retain Data for 180 Days.

In this Rule the social media has been divided into two parts, they are:

• 1)      Significant social media intermediary.
• 2)      Social media intermediary.

Significant social media intermediary being social medias who have large scale users above a threshold numbers should appoint and maintain following personnel to redress various issues relating to the law of the land: –

v  Chief Compliance Officer,

v  A nodal contact person needs to be appointed for 24x7 to coordinate with law enforcement agencies.

v  A Resident Grievance Officer.

 

Identification of the First Originator for messaging Apps like WhatsApp etc.

As stated in the Rule 4(2), a significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed by the Competent Authority under section 69 of the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form.

 

“Safe-Harbour Protections” under Section 79 of the IT Act and Proviso Clauses:

There are lot of debate with respect to the instant messenger like WhatsApp etc. whether the privacy they offered by way of end-to-end encryption will be violated. But if one studies the proviso clauses of this 4(2) of this Rule, it will be clear that nothing of that sort has been there and on the contrary the messages or chat can not be intercepted or to be taken.    

 

Consequence of Non-Compliance –

There are lot of uproar that various social media giant will be banned is absolutely false but after this Rule came into being they have to face rigours of law as provided in Rule 7.

 

Rule 7 specifies the consequences of Non-observance of Rules: Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.

 

Few Other Important Issues:

• Ø  PART III of this Rule relates to Code of Ethics and Procedure And Safeguards In Relation To Digital Media
• Ø  This Rule specially Rule 16 provides for Blocking of information in case of emergency
• Ø  This Rule specially Rule 18 provides for Information to be Furnished within 30 days by the Publishers.
• Ø  This Rule provides the details of what should be there in Code of ethics.
• Ø  CODE OF ETHICS contains: – Rules for News and current affairs:

1. Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978;
2. Programme Code under section 5 of the Cable Television Networks Regulation) Act,1995;
3. Content which is prohibited under any law for the time being in force shall not be published or transmitted.
4. General Principles on Online curated content which contains Content Classification which may be on the basis of:

i)                    Themes and messages;

ii)                   Violence;

iii)                 Nudity;

iv)                 Sex;

v)                   Language;

vi)                 Drug and substance abuse; and

vii)        Horror as described in the Schedule, as may be modified from time to time by the Ministry of Information & Broadcasting.

GENERAL GUIDELINE FOR CLASSIFICATION OF FLIMS AND OTHER ENTERTAINMENT PROGRAMMES, INCLUDING WEB BASED SERIALS:

This Rule relates to various concerns and they are: 

 

(a) DISCRIMINATION

(b) PSYCHOTROPIC SUBSTANCE, LIQUOR, SMOKING and TOBACCO

(c) IMITABLE BEHAVIOUR

(d) LANGUAGE

(e) NUDITY

(f) SEX

(g) VIOLENCE: Classification decisions shall take account of the degree and nature of violence in a work

 

Recent observation –

Recently the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has been challenged before the Hon’ble Kerala High Court.

Hence after perusal of the above Rule in my humble opinion, there is nothing which will going to ban the various popular social medias and there is nothing of unlawful interception of data. The rift for unlawful and lawful interception was, is and will always be there and everything depends upon how our law enforcement authorities will implement the Rules.

 

Sources:https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749

https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf)

Information Technology Rules, 2021 | Whether Your Call, Data Etc. Are Monitored ? Privacy & Security

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