The Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting has released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on 25th February 2021. These guidelines will bring Over-the-top (OTT), curated, and digital content under its ambit. In this article need for new IT rules, positive and negative aspects would be discussed which would be followed by a conclusion.
DEFINING INTERMEDIARIES AND OVER-THE-TOP PLATFORMS
In laymen's language, an intermediary acts as a link between people. It acts as a medium to carry messages when people are unable to do. According to IT Act, 2000 intermediary means one who receives, stores or transmits, or provides any service. It includes search engines, online payment sites, cyber cafes, etc.
Social Media Intermediary are service providers which facilitate online interaction between two or more users. These exclude search engines, email service providers but include apps such as WhatsApp, Telegram, Signal, etc.
Over-the-Top (OTT) platforms are means of providing films, series, and such content over the internet to suit the requirement of viewers. Hotstar, Netflix, Voot come under the meaning of OTT.
WHY HAVE THE RULES BEEN FRAMED?
The demand to regulate social media and OTT platforms has become louder, especially in the last couple of years. From courtrooms, parliament, policymakers to the public, it was one of the most discussed topics. In the recent Sudarshan TV case (UPSC jihad- conspiracy to infiltrate Muslims) also, the government has highlighted the need to regulate web-based media. The judicial system has experienced an increasing number of cases been filed on producers of web series such as Tandav, Pataal Lok, Aashram, etc. Films and TV serials are regulated by the Central Board of Film Certification, but there is no such regulatory authority for OTT platforms. Trolling and sharing fakes news has invited another pandemic i.e. infodemic. Recently, Govt. has asked Twitter to block some hashtags and handles, as they were creating unnecessary chaos. All these matters in the background have provided the government enough reasons to bring new IT Rules, 2021.
WHAT ARE THE NEW PROVISIONS OF 2021 RULES?
IT Rules, 2021 has replaced Information Technology (Intermediaries Guidelines) Rules 2011 to include digital space. According to Sec. 79 of the Information and Technology Act, 2000, intermediaries are not liable for third-party information. But new rules have serious provisions for it. Rules which have been notified have tried to cover as many as possible as needs of technological and human rights.
ANALYSIS OF PROVISIONS
1. Traceability and encryption – Rule 5(2) provide that significant social media intermediaries should enable identification of the first originator after the passage of judicial order or by any other competent authority under Sec. 69 of IT Act.
It is good to identify the first originator of the messages and penalize for the actions but enabling this process would be at cost of individual's privacy. Manoj Prabhakaran, a professor in IIT Bombay, in his report said that originator information is open to spoofing. It means one can try to gain unauthorized access to the system by sending fake messages and receive confidential information. It is a serious cybercrime. By doing this, the name of the first originators can be changed and penal actions can be borne by an innocent person. Further, the report mentions that the effectiveness of the mechanism, in the long-term, is likely to be very limited. Applying this rule would be compromising the privacy of individuals. The personal WhatsApp chats of Arnab Goswami have been released in the public domain, lacking a rationale behind it. This happened when there was no law or rules to ask for the first originator, imagining all this in presence of laws is a complete nightmare. To trace the first originator, storage of data is essentially required, and what if data of users are openly sold as happened in the Aadhar case. On Jan 04, 2018, The Guardian reported that the personal data of billion of Indians was sold online at just £6.
There is an urgent need to update ourselves with the technology. Then, bring laws with strict penal punishments for those who are indulged in a breach of the privacy of individuals for their personal benefits.
This rule recognizes that end-users should be well informed. When users know the implications of policy change, they can easily raise their voices. Recently, WhatsApp has tried to change its policy on data sharing. As soon as the public was informed, WhatsApp had to bear major consequences. A large number of users shifted to Signal, Telegram, and deleted WhatsApp from their devices. It had to advertise in local and national daily but it did not do enough damage control. At last, it had to extend the deadline of change in data policy from Feb. 8th, 2021 to May 15, 2021.
Within the same provision, the government should have additionally provided the mechanism to inform the users. Implications of changed policy should be informed by advertisements in a national and local daily in the local language or in some video format on YouTube ads. or before starting the app itself. It will increase the understandability of users and they will be able to make timely, informed decisions.
3. Chief Compliance Office – Under 5(1)(a) of the rule, a significant social media intermediary has to appoint an officer for the compliance of rules. The designation would be Chief Compliance Officer.
The presence of a dedicated Chief officer would ensure that rules are taken and followed in a disciplined manner. This rule is a step in the right direction. In the near future, companies will have whole departments for compliance, which will ensure that there exists a perfect blend of ethical and professional behavior.
Similarly, the appointment of a nodal officer to co-ordinate 24*7 with a law enforcement agency is a welcome step. Further, Rule 5(1)(d) mandates that companies publish compliance reports.
This will increase transparency, accountability, maintenance of complaints received, and action taken by intermediaries. For better implementation of this important provision, Government can attach points or credits whose benefits can be derived by platforms to raise funds and enjoy the faith of users.
4. Automated tools for filtering information – By rule 5(4), Government has notified that significant social media intermediaries shall employ technology-based measures to check the content.
Rules have provided that basic rights of individuals such as privacy, speech, and expression should be respected. It has specifically considered one of the main problems of bias.
For this, rules have been provided for periodic review. However, the period of review, the reviewer, and the availability of the said review in the public domain has been left unclear. If these questions remain unanswered, it will result in a serious fall in the efficiency of technology and IT rules.
There is no discussion on the kind of automated tools used. If intermediaries are left to choose tools on their own, this subjectivity may create a chaotic situation. Further, Rule 5 applies to significant social media intermediaries only. One need to consider here that the potential to create disturbance in the society is enjoyed by all kind of intermediaries and every significant intermediary is considered as non-significant at initial stages. Why wait for problems to become a major example of chaos? The government should include non-significant intermediaries at least under this provision.
5. Overlapping – According to rule 5(2), to initiate the order for first originators either the judicial orders or State/ Central govt. is required to pass the orders (Sec. 69 of IT Act, 2000)
In the provided three-tier mechanism, all the organs of govt. have been involved. At first stage judiciary, second stage executive (joint secretary), and then at third level legislatures.
In Rule 5(2), why is there 'or' between judicial orders and action by the Central and State government? Both the pillars have their defined functions to perform. Most people would agree that the judiciary is more competent than legislatures to evaluate these matters in the most comprehensive manner. There is no need to bring legislature in this. Further, why not change the system of three-tier mechanisms into three-tier judicial forums as India has consumer forums. It will save the time of legislative, executive and ensure delivery of justice. At present, India has not many cases related to the IT Act, 2000 but the increasing use of the internet and encroachment of human rights indicates that a lot of litigation is going to arise in this field.
6. Statue or Rule - IT Rules, 2021 has been passed under an executive order. There were expectations that the government is going to bring legislation to regulate OTT platforms and digital media.
The said rules were passed on 25th February 2021, in between the break of the budget session. The government could have passed it before 13th Feb or after 8th of March. By notifying rules, the government has possibly side-lined the much-needed discussion on the floor of Parliament. Sec. 79 of IT Act, 2000 provides that intermediaries are absolved from the liability of third-party content. But new rules make them liable. There is a possibility that the validity of rules can be challenged in a court of law, especially as the Constitution of India does not permit the laws passed by Parliament to be changed through executive orders.
The government of India has passed the IT Rules, 2021 to maintain order in a society that was disturbed by unregulated social media and OTT platforms. It is a much-required step but it is not without its share of problems. Consistent breach of privacy, increase in cybercrimes are definite consequences if required amendments are not pursued. Amendments, if implemented, will ensure proper regulation, control of privacy breaches and protect the fundamental rights of countrymen. The UK is also in the process to regulate OTT platforms, but by way of legislation i.e. Online Safety Bill not by mere rules. There is a need to review the dispute mechanism and replace it with the judicial system. The government should replace these rules with statutory laws after must require consultation with all the stakeholders. Otherwise, the objective of maintaining the order will turn into a reason for chaos.
1. Report ‘On Proposal for Originator Tracing in WhatsApp’ by Manoj Prabhakaran, Professor IIT Bombay
2. Information and Technology Act, 2000
3. Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
4. https://indianexpress.com/article/opinion/columns/digital-space-social-media-regulati on-govt-control-it-act-7206572/
5. https://www.theguardian.com/world/2018/jan/04/india-national-id-database-data-leak bought-online-aadhaar
6. https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights 7. https://thewire.in/tech/new-it-rules-the-great-stretching-of-due-diligence-requirements -under-section-79
8. https://sflc.in/analysis-information-technology-intermediary-guidelines-and-digital-m edia-ethics-code-rules-2021
10. https://www.thehindu.com/news/national/the-hindu-explains-why-has-the-government -announced-new-guidelines-to-regulate-digital-content/article33951316.ece 11. https://www.thehindu.com/opinion/editorial/a-wolf-in-watchdogs-clothing-the-hindu editorial-on-indian-governments-move-to-regulate-digital-media-platforms/article339 56670.ece
12. https://www.livelaw.in/columns/newly-notified-information-technology-rules-2021-1 70592
Article by Shreya Maloo, BALLB (Hons.), 1st-year student of The Rajiv Gandhi National University of Law, Patiala, Punjab
May contacted at; firstname.lastname@example.org