Analysis of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

 

Introduction:

On February 25, 2021, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting (“MIB”) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules 2021”) under Section 87 of the Information Technology Act, 2000 (“IT Act”). The objective of the Intermediary Rules 2021, which supersede the Information Technology (Intermediaries Guidelines) Rules 2011, is to establish a harmonious, soft-touch oversight mechanism in relation to social media platforms as well as digital media and other streaming platforms etc.

The Intermediary Rules 2021 are divided into three parts - Part I deals with defining all the terms used therein; Part II deals with the due diligence requirements which must be followed by a social media intermediary (SMI) and a significant social media intermediary (SSMI) and Part III deals with the code of ethics and procedure and safeguard in relation to digital media.

The IT Act defines intermediary as “any person who, on behalf of another person, receives, stores, transmits, or provides any service with respect to any particular electronic record” which includes telecom service providers, network service providers, internet service providers, web-hosting service providers, and search engine providers. In Intermediary Rules 2021, the idea of “SMI” and the concept, is defined as “a broker who mainly or only enables two or more users to connect online, enabling them to generate, upload, share, distribute, alter or utilise its services to accede to information”. Divided into “SMI” and “SSMI”, based on the number of users on the social media platform Intermediaries are (number of registered users in India should be above 50 lakhs as notified by the Central Government).

Important impact on the social media:

Under Part four of the revised IT Rules, major social media intermediaries shall appoint a compliance officer “in charge” of ensuring compliance with the Act and rules and shall, if he fails to ensure that such intermediate observes, “be confident in any proceedings concerning the use of relevant information, data or communication links by third parties that are made available or hosted by that intermediary” Within 24 hours of receiving a complaint social media firms are expected to submit postings featuring nudity or altered pictures.

The new standards under the 2021 intermediary guidelines and digital media ethics code would regard social media firms with more than 50 registered lakh users as 'major intermediaries of social media.’ Intermediaries had hitherto not been obligated to provide to the initiating author the substance of any message or other information. If you lose your immunity as intermediaries, you would be equivalent to the individual uploading such content under the Indian Penal Code for any unlawful content (for example obscene images or impersonation). The removal of intermediate status would imply that any user's message on these platforms is seen as published and made legally responsible for any content which is considered illegal. As an editor, platforms will have to control material proactively, like China's internet, before they emerge online. 

New Regulations to be followed by the Social Media platforms:

Appointment of a Chief Compliance Officer to ensure compliance with the Act and the Rules. Such an individual should be an Indian resident. Appointment of the 24x7 Nodal Contact Person with police forces. The resident in India is such a person. Appointing a Grievance Officer to carry out the tasks specified under a Grievance Mechanism. The resident in India is such a person.

Publishing a monthly compliance report with information of received complaints and action on complaints and the material details proactively deleted by the major social media intermediary. But the platforms are still negotiating and are trying to meet the new requirements for six months. Without the domestic social media app Koo, the new restrictions have not been implemented for any player, including Twitter, Facebook, WhatsApp and Instagram. The administration also emphasised that there were no new procedures in place to grant new “emergency blocking powers” to the Information and Radio Ministry Secretory. 

Impact of New IT Rules on the paid services of social media platforms

New standards for influencers who upload material to different social media sites like Instagram, facebook and YouTube have been published by the Indian Advertising Standard Council (ASCI). Informants will now include a disclosure label to indicate whether payment ads are included in a post according to new standards. These recommendations, which are due to come into force from 14 June 2021, request influencers to make such a communication available to an ordinary consumer. Subhash Kamath, ASCI Chairman, remarked that people can easily differentiate between the programme or substance and the publicity if they watch TV or read newspapers. They have no misunderstanding at all, yet social media are hard to distinguish.

Under the new standards, the divulgation label must remain in the video for a minimum of three seconds if the sponsored content is a video. The video label must remain for the whole duration of the segment in which a product is marketed for videos longer than 2 minutes. The disclosure should be clearly provided at the start and at the conclusion for audio posts. ASCI has also created the ASCL-social, a digital domain with standards and an influential community, marketers, agencies and consumers.

ASCI also call on influencers before encouraging them to review the product and services. No false claims must also be made in the sponsored contents on the product. The draught guidance was first released in February and all parties involved — announcers, agencies, influencers, and consumers — were asked to provide comments. The difference between content and promotional advertisements is essential, according to experts as digital media consumption expands and becomes the standard. Influencer marketing has gone popular and has changed the marketing landscape. Consumers therefore have a right to know what material businesses have paid for, and this openness will be influenced by the standards.

Analysis of the impact of the IT Rules:

Additional intermediary obligations are prescribed in Intermediary Rules 2021. While providing compliance reporting is a great step towards making content moderation procedure transparent and efficient, publishing data monthly might cause issues for the intermediaries. On addition, the broker must tell users each year that they have to comply to these policies to continue to obtain access and also inform them of any changes to these policies, save as provided for in its website/app by the Privacy Policy, User Agreement, Regulations and Rules. This creates needless hassles for users and not merely for the intermediaries when such information is given to them. 

Even after the user has raged or cancelled their registration, an intermediary may retain on the server information from the user who registers on the website or the application for 180 days. The time duration for the storage of information was expanded to 180 days from 90 days for investigation reasons. Within 72 hours after receipt of order it shall submit information under its control or custody to the government agency,” No time-limit for the provision of information was previously established. These procedures would go a long way to ensure the fundamental goals of safety and privacy safeguards. 

Conclusions

The main advantage of users would be to post the contact details of the GRO on its website/app and the method for complaining of any content on the website/app and the timescales surrounding it. And the GRO should respond promptly to comply with stringent timeframes. In terms of removing content, important social media intermediaries must give users with an explanation. The rule requires also the entity, and the decision must be taken within a reasonable amount of time, to allow an aggressive user to contest the measures implemented by the intermediary. Although this is a hardship for social media firms, it is very necessary. This is important. In many cases, social media firms wind up banning innocent contents, mistakenly or otherwise. This measure would increase transparency and guarantee that private players take proper account of user rights when screening material.