INFORMATION TECHNOLOGY RULES, 2021

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is secondary or subordinate legislation that suppresses India‘s Intermediary Guidelines Rules 2011.[a][1][2] The 2021 rules have stemmed from section 87 of the Information Technology Act, 2000 and are a combination of the draft Intermediaries Rules, 2018 and the OTT Regulation and Code of Ethics for Digital Media.[3][4][5]

The Central Government of India along with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB) have coordinated in the development of the rules.[6]

Intermediaries had until 25 May 2021 to comply with the rules.[7]

History

During Monsoon session of the Parliament in 2018 a motion on “Misuse of social media platforms and spreading of fake news” was admitted. The Ashvini Vaishnaw, Minister of Electronics and Information Technology, accordingly made a detailed statement of the “resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law”. MeitY then prepared the draft Information Technology (Intermediary Guidelines) Rules 2018 to replace the 2011 rules.[8] The Information Technology Act, 2000 provided that intermediaries are protected liabilities in some cases.[9] The draft 2018 Rules sought to elaborate the liabilities and responsibilities of the intermediaries in a better way.[9] Further the draft Rules have been made “in order to prevent spreading of fake news, curb obscene information on the internet, prevent misuse of social-media platforms and to provide security to the users.”[9] The move followed a notice issued to WhatsApp in July 2018, warning it against helping to spread fake news and look on as a “mute spectator”.[10]

In relation to the Prajawala case, on 11 December 2018, the Supreme Court of India observed that “the Government of India may frame the necessary Guidelines / SOP and implement them within two weeks so as to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications.” Further a parliamentary report laid in 2020 studied the effect of pornography on children.[11][12]

On 5 January 2019 a government open house was held to discuss the Rules.[13] Further, ten days were given for counter comments, until 28 January.[14] On 21 September 2019 the Centre informed the Madras High Court bench under Justice M Sathyanarayanan that deliberations on the Draft Rules 2018 had been completed.[15] Facebook wrote a plea to transfer the matter to the Supreme Court.[15][16]

MeitY had invited comments on proposed amendments early in 2019. The amendments were seen by many to “overstep the aforesaid intention sparking concerns of violating free speech and privacy rights of individuals.”[17] It is seen that “the guidelines suffer with excessive delegation of powers and shift the burden of responsibility of identification of unlawful content from a government/ judiciary to intermediaries.”[18] A total of 171 comments were received by MeitY; all of the comments were published for counter comments.[19][20] On 21 October 2019, MeitY asked the court for three months’ time for finalisation of the Intermediary Rules, 2018.[19]

About

Rules to be administered by MeitY include the due diligence required of intermediaries and the grievance redressal mechanism. Rules to be administered by MIB include a code of ethics, a self-classification system and an oversight mechanism.[11]

Tracking the origin of information

Rule 5(2) covers the “identification of the first originator of the information”. The extent of the first originator is limited to India— “Provided further that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information.”[21][22]

Additional due diligence

Rule 4(a)(b)(c) of the guidelines require the appointment of a Chief Compliance Officer, a nodal contact person and a Resident Grievance Officer.[23][21][22]

Concerns

Concerns over the 2018 draft

Various issues have been pointed out with the rules such as restriction of free speech, requirements such as automatic identification and removal of content, and lack of elaboration on how the five million users will be calculated.[24] Questions raised included if “intermediaries” include online media portals, raised by Free Software Movement of India.[25] Mozilla (Firefox), also raised issues with the draft Rules.[14] BSA (The Software Alliance) wrote to MeitY to “exclude enterprise cloud service providers” from the scope of the Rules and to remove the filtering obligations.[26]

Centre for Internet and Society has raised concerns with the draft rules and has asked for changes such as that draft Rule 3(2), Rule 3(4), Rule 3(5), Rule 3(10) be completely deleted.[27] Divij Joshi, Tech Policy Fellow at Mozilla, also recommends that draft Rule 3(5) be deleted and that “requirement to proactively identify and remove access to all ‘unlawful content’ is vague and overbroad.”[28][29]

A joint letter written by a group of experts from research, academia, and media, including Faisal FarooquiKarma PaljorNikhil PahwaShamnad Basheer and professors from IIM Bangalore and IIT Bombay, and organisations including Free Software Foundation Tamil NaduFree Software Movement of IndiaFree Software Movement Karnataka and Software Freedom Law Centre, India, to MeitY, pointed out various issues the Rules could cause such as the traceability requirements interfering with the privacy rights of citizens.[b][30]

Aftermath

Amit Khare, Secretary, Ministry of Information and Broadcasting has called the rules as a “progressive institutional mechanism”.[31]

Immediately following the publication of the rules, a number of platforms advised creators of caution on the basis of the new rules.[32] Petitions have been filed challenging the rules with respect to the digital news media.[33][34]

The Foundation for Independent Journalism editor M. K. Venu (The Wire) and The News Minute editor Dhanya Rajendran filed the first case challenging the rules. LiveLawThe Quint and Pratidhvani have challenged the rules in court.[35]

On 25 May 2021, the last day for intermediaries to comply, WhatsApp sued the Government of India over the rules.[36] The Ministry of Electronics and Information Technology, described the action as “clear act of defiance”.[37]

After a statement made by Twitter, the government released a press statement which said, “Protecting free speech in India is not the prerogative of only a private, for-profit, foreign entity like Twitter, but it is the commitment of the world’s largest democracy and its robust institutions. Twitter’s statement is an attempt to dictate its terms to the world’s largest democracy. Through its actions and deliberate defiance, Twitter seeks to undermine India’s legal system. Furthermore, Twitter refuses to comply with those very regulations in the Intermediary Guidelines on the basis of which it is claiming a safe harbour protection from any criminal liability in India.”[38] On 5 July 2021, the government released a statement claiming Twitter has lost its liability protection concerning user-generated content. This was brought on by Twitter’s failure to comply with the new rules with a filing stating that the company failed to appoint executives to govern user content on the platform.[39]

In July 2021, Press Trust of India moved the Delhi High Court over the rules.[40]

Citations

  1.  “Indian govt announces new social media(IT) rules, 2021”thehindu.com.
  2. ^ Foundation, Internet Freedom (27 February 2021). “Explainer: Why India’s new rules for social media, news sites are anti-democratic, unconstitutional”Scroll.in. Retrieved 2 March 2021.
  3. ^ “Latest Draft Intermediary Rules: Fixing big tech, by breaking our digital rights?”Internet Freedom Foundation. 25 February 2021. Retrieved 2 March 2021.
  4. ^ The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018. Ministry of Electronics and Information Technology, Government of India.
  5. ^ “Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”SFLC.in. 27 February 2021. Retrieved 9 March2021.
  6. ^ Dalmia, Vijay Pal (4 March 2021). “Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021”www.mondaq.com. Retrieved 5 March 2021.
  7. ^ “WhatsApp moves Delhi High Court against IT Intermediary Rules 2021 mandating it to trace first originator of information”Bar and Bench. 26 May 2021. Retrieved 26 May 2021.
  8. ^ “Comments / suggestions invited on Draft of “The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018”Ministry of Electronics and Information Technology, Government of India.
  9. Jump up to:a b c “Analysis Of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 – Media, Telecoms, IT, Entertainment – India”www.mondaq.com. Retrieved 4 January 2020.
  10. ^ Sonkar, Siddharth; Tarafder, Agnidipto (26 December 2018). “Unclear understanding of ‘unlawful content’ may end up curbing free speech”Business Standard India. Retrieved 4 January 2020.
  11. Jump up to:a b “Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) Rules 2021”Press Information Bureau, Government of India. Ministry of Electronics & IT. 25 February 2021. Retrieved 9 March 2021.
  12. ^ “Prajwala Letter Suo Moto Writ Petition (CRL) No(s). 3/2015”Indian Kanoon.
  13. ^ “Government to hold open house on intermediary guidelines on January 5; publish comments online”The Economic Times. 2 January 2019. Retrieved 2 January2020.
  14. Jump up to:a b “Legal ‘hole’ in online draft”Telegraph India. Retrieved 4 January 2020.
  15. Jump up to:a b S, Mohamed Imranullah (21 September 2019). “Draft rules to regulate social media ready: Government”The HinduISSN 0971-751X. Retrieved 4 January2020.
  16. ^ T., Prashant Reddy (28 December 2018). “Liability, Not Encryption, Is What India’s New Intermediary Regulations Are Trying to Fix”The Wire. Retrieved 4 January2020. Author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy, New Delhi.
  17. ^ Kittane, Purushotham (15 March 2019). “Under India’s New Intermediary Rules, Fundamental Rights Take Backstage”OHRH, Faculty of Law, University of Oxford. Retrieved 4 January 2020.
  18. ^ Consumer Unity and Trust Society (2019) “Counter Comments On The Submissions Received By Ministry Of Electronics And Information Technology On ‘The Information Technology Intermediary Guidelines (Amendment) Rules, 2018’
  19. Jump up to:a b “Stricter social media regulations in India to be finalised in three months: MeitY- Technology News, Firstpost”Firstpost Tech2. 21 October 2019. Retrieved 4 January 2020.
  20. ^ Basu, Arindrajit (19 February 2019). “Resurrecting the marketplace of ideas”The Hindu @businessline. Retrieved 4 January 2020.
  21. Jump up to:a b “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021” (PDF). The Gazette of India. Ministry of Electronics and Information Technology. 25 February 2021 – via archive.org.
  22. Jump up to:a b Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 via LiveLaw.in. Archived on 4 March 2021.
  23. ^ Aryan, Aashish (25 May 2021). “Amid Twitter tussle, next up: deadline by govt to it, Facebook, to appoint officers”The Indian Express. Retrieved 26 May 2021.
  24. ^ “Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018”PRS Legislative Research. 30 January 2019. Retrieved 2 January 2020.
  25. ^ “Do ‘intermediaries’ include online media portals, asks FSMI”The New Indian Express. 14 February 2019. Retrieved 4 January 2020.
  26. ^ BSA The Software Alliance (31 January 2019). BSA Submission on Draft Information Technology [Intermediary Guidelines (Amendment) Rules] 2018
  27. ^ Gurshabad Grover et al (31 January 2019). Response to the Draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018Centre for Internet and Society (India)
  28. ^ Joshi, Divij (2019). “Towards a Safer Social Media – Submissions to the Ministry of Information and Technology, Government of India, on the Draft Information Technology Intermediary Guidelines (Amendment) Rules, 2018”SSRN Electronic Journaldoi:10.2139/ssrn.3326368ISSN 1556-5068.
  29. ^ “Meet our Fellows”Mozilla Foundation. Retrieved 14 June 2020.
  30. ^ Khetarpal, Sonal (6 February 2019). “Draft Information Technology rules: Experts write to MeitY, highlight key concerns”Business Today. Retrieved 4 January2020.
  31. ^ Khare, Amit (8 March 2021). “Doubts about new IT rules are groundless”The Indian Express. Retrieved 9 March 2021.
  32. ^ Jha, Lata (8 March 2021). “OTTs tread cautiously, cancel shows”mint. Retrieved 9 March 2021.
  33. ^ “Delhi HC seeks Centre’s response on plea challenging new IT Rules”The Times of India. PTI. 9 March 2021. Retrieved 9 March 2021.
  34. ^ “Delhi HC Issues Notice in The Wire’s Challenge to New IT Rules”The Wire. 9 March 2021. Retrieved 9 March 2021.
  35. ^ “In another challenge to the new IT Rules 2021, Kannada News Portal ‘Pratidhvani’ files petition”Latest Laws. 31 March 2021. Retrieved 26 May 2021.
  36. ^ “WhatsApp sues India govt, says new rules mean end to privacy: Report”mint. Reuters. 26 May 2021. Retrieved 26 May 2021.
  37. ^ Bhardwaj, Deeksha (26 May 2021). “WhatsApp’s refusal to comply with new rules a clear act of defiance: Centre”Hindustan Times. Retrieved 31 May 2021.
  38. ^ “Twitter seeking to undermine India’s legal system, government says”The Economic Times. 28 May 2021. Retrieved 31 May 2021.
  39. ^ “Twitter loses immunity over user-generated content in India”Reuters. 6 July 2021. Retrieved 6 July 2021.
  40. ^ Suryam, Shagun (9 July 2021). “”Rules usher in an era of surveillance, fear:” Press Trust of India to Delhi High Court in challenge to Constitutional validity of IT Rules 2021″Bar and Bench. Retrieved 9 July 2021.