Social Media and New IT rules 2021

Why in news?
  • The Ministry of Electronics and Information Technology (MeitY) had notified the Information Technology (intermediary guidelines and digital media ethics codes) rules 2021 in February.
  • Aim: to regulate social media and over-the-top (OTT) platforms.
  • Enacted under Section 69A (2), 79(2) (c) and 87 of the Information Technology Act, 2000. They will replace the IT (Intermediaries Guidelines) Rules, 2011.
  • Broader purpose of the rules :
    • to make these companies comply with the Constitution and Rule of law
    • Uphold sovereignty and integrity of India.
    • Protect the dignity of women and children
Recent Developments :
  • A three-month period was given to Social Media intermediaries to comply with the new rules.
  • The government sent a new notice to all social media intermediaries, asking for details about compliance of the rules.
  • Google, Facebook, WhatsApp, Telegram, Koo, Sharechat, and LinkedIn shared information on the new regulations.
  • Twitter requested an extension of the compliance window and also called for a constructive dialogue and work to safeguard freedom of expression.
  • Entities like the Wire, LiveLaw, and the Quint have also challenged the new Intermediary Guidelines and Digital Media Ethics Code.
Evolution of the new rules:
  • 2017: SC said that the government may frame necessary guidelines to eliminate images, videos, and websites containing child pornography, rape, and gang rape from platforms that host content.
  • 2018: In Tehseen S. Poonawalla v/s Union of India, SC ordered the government to stop spreading explosive messages and videos on social media.
  • 2020: A Rajya Sabha Ad-hoc Committee submitted its report on social media pornography and its impact on children and society in 2020. It was recommended to trace the originator of such content.
  • 2020: OTT platforms brought under the Ministry of Information and Broadcasting.
Overview of the New Rules:

 OTT Platforms

·         The Over-the-top (OTT) and digital platforms must appoint -

Ø   Chief Compliance Officer and a Grievance officer - The former will ensure the compliance of these rules.

Ø  The Grievance officer - Based in India and will register the grievance within 24 hours and resolve it within 15 days.

·         They must publish a monthly report on the number of complaints received and the progress of redress.

·         They must remove content that violates the dignity of users, particularly women - for example, nudity, sexuality or impersonation etc - within 24 hours of a complaint.

·         OTT Platform: Content would be divided into five categories based on age - U (Universal), U/A 7+, U/A 13+, U/A 16+ and A (Adult).

·         Content that is classified U/A 13+ or higher must have parental lock systems, and content classified as 'Adult' must have age-verification functionality.

Social Media

·         Grievance officer and compliance related provisions are applicable.

·         Traceability (knowing 1st originator) of messages that cause violence, riots, terrorism, rape or threat to national security must be ensured.

·         Significant Social Media Intermediary - A new category has been introduced and Govt has defined it as an intermediary with over 5 million users.

For News Publisher

·         bserve the Norms of Journalistic Conduct of the Press Council of India as well as the Cable Television Networks Regulation Act 1995.

  • A 3 tier grievance redressal mechanism shall instituted -
    • Self regulation - Grievance Redressal Officer of the platform
    • Self regulating bodies registered with the Ministry - headed by a retired judge of the SC, a HC or independent eminent person and have not more than six members.
    • Oversight mechanism by Ministry of Information and Broadcasting.
  • Non-compliance with the rules will result in loss of safe harbour status under IT Act making the platforms liable for action on content posted by third parties.
Issues with the New IT Rules:
  • It affects Art 19: freedom of speech and expressions.
  • The rules were created by Executive action without Parliamentary approval and larger consultation with stakeholders.
  • The rules were drafted by the Ministry of Electronics and Information Technology (MeiTY). But, the Second Schedule of the Business Rules, 1961 does not empower MeiTY to create regulations for digital media.
  • The rules hamper the right to privacy because they impose a traceability requirement on social media platforms under a judicial order. Also it can result in mass surveillance.
  • Since some of the social media platforms work on end to end encryption, traceability will be very difficult.
  • Intermediaries are required to have their own nodal officers, compliance officers, and grievance officers, which raise operational costs and burden.
  • May impose indirect censorship over digital news platforms.
Justification of the rules:
  • Will enable assertion of Indian Constitution and rule of law over foreign companies.
  • Will help protect sovereignty, security and integrity of India.
  • Help protect the dignity of women and children.
  • It will provide a level playing field between the offline (Print, TV) and digital media.
  • It will help prevent morphing, fake news, deep fakes, hate speech, communally charged content etc.
  • They are based on SC guidelines.
  • The debate between freedom of speech and privacy on one hand and its restrictions is as old as our Constitution. The new rules try to deal with this debate in the digital realm. While there are several provisions that were needed, some valid concerns regarding privacy, censorship, compliance burden etc have been raised which need to be addressed through wider consultation.
Posted by Jawwad Kazi on 22nd Jul 2021
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