Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: Key Points & Highlights

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("Intermediary Guidelines") inter alia aims to serve a dual-purpose:

(1) increasing the accountability of the social media platforms (such as Facebook, Instagram, Twitter, etc.) to prevent their misuse and abuse; and

(2) empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution.

The Intermediary Guidelines have been framed in exercise of powers under section 87(2) of the IT Act and supersede the previous Information Technology (Intermediary Guidelines) Rules, 2011.

Key Features of the Rules 

• Social media intermediaries, with registered users in India above a notified threshold, have been classified as significant social media intermediaries (SSMIs).  SSMIs are required to observe certain additional due diligence such as appointing certain personnel for compliance, enabling identification of the first originator of the information on its platform under certain conditions, and deploying technology-based measures on a best-effort basis to identify certain types of content.
   
• The 2021 Rules prescribe certain requirements for online publishers of (i) news and current affairs content which include online papers, news portals, aggregators, and agencies; and (ii) curated audio-visual content, which is defined as a curated catalog of audio-visual content (excluding news and current affairs) which is owned by, licensed by, or contracted to be transmitted by publishers and available on demand.  The Rules institute a three-tier structure for regulating these publishers: (i) self-regulation by publishers, (ii) self-regulation by associations of publishers, and (iii) oversight by the central government.
• All intermediaries are required to provide a grievance redressal mechanism for resolving complaints from users or victims.  A three-tier grievance redressal mechanism with varying levels of self-regulation has been prescribed for publishers.

The Rules provides the due diligence to be followed by an intermediary (including social media intermediary) while discharging its duties, Grievance Redressal Mechanism and Digital Media Code of Ethics -

• Prominently publish on its website (or mobile-based application or both), the rules and regulations, privacy policy, and user agreement for access or usage of its computer resource by any person;
• Through rules and regulations, privacy policy or user agreement of the intermediary, ensure to inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that belongs to any other person; is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy; is harmful to a child; infringes any patent, trademark, copyright or other proprietary rights; impersonates another person; threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order; contains a software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource; 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.
• Periodically inform its users (at least once every year), the consequences of non-compliance with rules and regulations, privacy policy or user agreement for access or usage of the computer resource of such intermediary such as termination of the access or usage rights of the users to the computer resource immediately or remove non-compliant information or both.
• Prohibit to host, store or publish any unlawful information, which is against any law for the time being in force in relation to the interest of the sovereignty and integrity of India.
• Periodically (at least once a year) inform its users of its rules and regulations, privacy policy or user agreement, or any change in the rules and regulations, privacy policy or user agreement.
• In case any information is collected from a user for registration on the computer resource, it shall retain his information for a period of one hundred and eighty days after any cancellation or withdrawal of his registration.
• Provide information under its control or possession as soon as possible, but not later than seventy-two hours of the receipt of an order to the Government agency which is lawfully authorized for investigative or protective or cyber security activities, for the purposes of verification of identity, or for the prevention, detection, investigation, or prosecution, of offenses.
• Ensure not to deploy or install or modify the technical configuration of a computer resource or become party to any act that may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force.
• Report cyber security incidents and share related information with the Indian Computer Emergency Response Team in accordance with the policies and procedures as mentioned in the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013.

Code of Ethics: For publishers of news and current affairs, the following existing codes will apply:

(i) norms of journalistic conduct formulated by the Press Council of India, and

(ii) programme code under the Cable Television Networks Regulation Act, 1995.

For online publishers of curated content, the Rules prescribe the code of ethics.  This code requires the publishers to

(i) classify content in specified age-appropriate categories, restrict access of age-inappropriate content by children, and implement an age verification mechanism,

(ii) exercise due discretion in featuring content affecting the sovereignty and integrity of India, national security, and likely to disturb public order,

(iii) consider India’s multiple races and religions before featuring their beliefs and practices, and

(iv) make content more accessible to disabled persons.

Oversight by Ministry: The Ministry of Information and Broadcasting will:

(i) publish a charter for self-regulating bodies, including Codes of Practices,

(ii) issue appropriate advisories and orders to publishers;

(iii) have powers to block content on an emergency basis (subject to review by the inter-departmental committee).  

Any directions for blocking content will be reviewed by a committee headed by the Cabinet Secretary.

Grievance redressal: Any person aggrieved by the content of a publisher may file a complaint with the publisher, who must address it within 15 days.  If the person is not satisfied with the resolution, or the complaint is not addressed within the specified time, the person may escalate the complaint to the association of publishers, who must also address the complaint within 15 days.  

The complaint will be considered by an inter-departmental committee constituted by the Ministry of Information and Broadcasting if:

(i) escalated by the complainant or the association under certain conditions, or

(ii) referred by the Ministry itself.