This article is written by Shikha Pokhriyal pursuing law from Delhi Metropolitan Education, GGSIPU. This article talks about the new Information Technology rule introduced in the year 2021.
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The Central Government in February 2021, formulated new guidelines regarding information technology. The Government enacted new rules to tackle the issues of lack of transparency, misuse of social media in promoting nudity, and threatening the dignity of women. Many other serious concerns were also raised due to the massive increase in the use of social media by every age group. In this modern world, every individual’s life depends upon social media. Though social media enables the spread of the word faster by making people aware of what is going on worldwide, it also raises the risk of abuse and cyber threat. To curb all these social problems, the Central Government enacted these policies.
These new information technology policies are introduced under the Information and Technology Act, 2000.
In this article, we cover all the details about the new Information Technology 2021 rules, the need for these new policies, and how establishments of these new rules violate the rights of the social media and OTT platforms.
Background – the requirement of a new policy
The Central Government formulated the new policy regarding the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Government enacted these guidelines to curb all the social risks. The Government stated that social media platforms are most welcome in India but all these digital platforms have to follow the Indian Constitution and the other legal provisions of India. The increased use of the digital world has created a lot of opportunities for people. The advanced and upgraded technology of social media platforms provides opportunities to earn a livelihood and make life a little easier as now most of the work is done just by sitting at home.
These digital platforms helped people to present their creative side and get acknowledged for their skills. The digital platform is the platform that helps in empowerment. The craze on social media is only increasing due to the massive spread of mobile phones and the internet. The telecom companies introduced various plans with free internet in less money for the mobile phones to meet the demands for the internet
Social media platforms like Facebook, Whatsapp Messenger, Instagram, Twitter, and Youtube are considered the most famous platforms to be in. The majority of common people use these platforms for various purposes like news, entertainment, music, videos, and most importantly to earn some money. All these social media platforms are helping people to present their opinions on various important matters, to spread some news on matters that are not talked about otherwise, it can even be the policies and the decisions of the Government. Every citizen has the right to express their mind and their thoughts.
The Government appreciates the fact that now citizens are more aware of their rights and they are capable enough to raise their voices if something wrong happens to them by using these digital platforms. But what people do not realize while using these social media platforms is the rules and laws of the country. The content on these social media platforms sometimes gives rise to misinformation, hatred against any religion or community, or any related news, the actions of the government are sometimes falsely presented on these social media platforms in the form of memes and jokes. All these activities hurt the sentiments of the action of the society and also break the legal provisions of the country.
The Supreme Court in the year 2018 urged the Central Government to frame important guidelines and policies to reduce child pornography, rape, and gang rape incidents by eliminating content from the digital platforms related to or giving rise to these incidents.
The Supreme Court acknowledged the need for new guidelines in the case of Prajjawala in the year 2018.
Prajwala letter case
In the case of Prajwala v. Union of India & Others Non-Governmental Organization (2018), a person named ‘Prajwala’ wrote a letter to the Supreme Court raising concerns regarding the unfortunate state of affairs of the care and protection of children. In this Public Interest Litigation(PIL), the letter stated that there are some pictures and videos of children on the social media platforms that are of serious concern and raise questions on the protection of children.
Prajwala while filling the petition invoked Article 32, stating in the application that the children and women who have been rescued from the illegal business of human trafficking include crimes like prostitution and pornography. To reduce crimes like rape, gang rape, and exploitation against women and children, the Supreme Court asked the Central Government to frame new guidelines to eliminate the videos and scenes promoting child pornography or any videos or images threatening the dignity of the women.
Tehseen S. Poonawalla case
In the case of Tehseen Poonawalla v. Union of India (2018), the Supreme Court held that the Government must formulate proper and strict policies to curb irresponsible and fake messages, pictures, and videos on the various platforms of social media. The court stated that when these fake messages regulate in the social media platforms having crores of followers, then this can give rise to riots and mob lynching.
Information Technology (IT) Rules, 2021
The Central Government on the orders of the Supreme Court formulated the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These new guidelines were enacted to keep in control various kinds of social media and OTT platforms. These new IT policies were enacted on 25th February 2021. These new information technology rules will replace the Information Technology (Intermediaries Guidelines) Rules, 2011.
According to the Central Government, these new rules and regulations shall help in the elimination of cybercrimes and threats. With the help of this new policy, social media platforms will become more empowered and accountable. These guidelines will not violate any fundamental rights like freedom of speech and expression. As the social media platforms have expanded, these platforms empower one section of society while increasing severe consequences for some other sections.
These new rules will allow the users to file their grievances and complaints and get redressal within a reasonable time.
Salient features of the new policies
The Central Government formulated new rules for the social media platforms and the digital media and OTT platforms.
Guidelines for Social Media Intermediaries by the Ministry of Electronics and Information Technology
- Due diligence: The intermediaries also include social media intermediaries, under this new rule they are expected to follow due diligence. In the case where the intermediaries do not follow due diligence, the legal provision of Safe Harbour Provisions mentioned under Section 79 of the Information Technology Act 2000 that protects the social media intermediaries will not apply to them for claiming immunity.
- Grievance Redressal Mechanism: The intermediaries are under an obligation of these new rules, to establish a proper grievance redressal system for the users and the victims. Intermediaries including the social media intermediaries are supposed to appoint a grievance officer who will deal with the complaints of the users or victims. The grievance officer shall respond to the complaint within twenty-four hours and resolve the complaint within fifteen days from its receipt.
- Ensuring online safety and dignity, especially of women: Any content that exposes the private areas of individuals, show an individual half or partially nude or engaging in a sexual act, or includes morphed pictures, the social intermediaries are under obligation to remove or disable the content within twenty-four of receipt of the complaint.
- Types of Social Media Intermediaries to be appointed: The new Information Technology rules specify the distinction between the social media intermediaries and the significant social media intermediaries. This kind of differentiation is created to encourage innovation and to provide opportunities to the new social media intermediaries. The number of users on the platform decides the distinction. Under these new rules, social media intermediaries are under due diligence to follow some additional rules like make sure the appointment of:
- A chief compliance officer, who shall be under obligation to follow the rules of the Act and should be an Indian resident
- A nodal contact person, who shall be in contact with law agencies twenty-four seven. Such a person should also be an Indian resident.
- Resident grievance officer, this person will be under obligation to perform the functions mentioned under grievance redressal mechanism, such person should be an Indian resident.
- All these officers are under the duty to publish a report monthly specifying the details of the complaints and what actions are taken on them and also what content is removed by the social media intermediaries.
- Services provided by the significant social intermediaries primarily like messaging will enable the identification of the first originator of the information. This function is required in the process of “prevention, detection, investigation or prosecution or punishment of an offence regarding the sovereignty and integrity of India, security of the state, friendly relations with foreign state or public order incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years”.
- Removal of unlawful content: If the social media intermediaries receive an order from the court or the appropriate Government or its recognized agencies by the authorized officer which states it should not host or publish any content that is prohibited under the legal provisions of the country as it might hurt the sovereignty and integrity of India, public order, friendly relations with the foreign countries, etc.
Guidelines for digital media and OTT platforms
- Self-classification of the content: The OTT platforms are known as publishers of online curated content, so they are under an obligation to classify the content into the five categories U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
- Parental lock: Parental lock should be implemented on the content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.
- Display rating: The OTT platforms will display the classification rating for each program and content. These ratings should be displayed with a content descriptor explaining to the user the nature of the content and advising on a viewer descriptor.
- Publishers of news on Digital Media: The publishers of the news on the digital media are under an obligation to follow the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act, thereby providing a level playing field between the offline (Print, TV) and digital media.
- Grievance redressal system: A three-tier grievance system has been established under the rules:
- Level-I: Self-regulation by the publishers;
- Level-II: Self-regulation by the self-regulating bodies of the publishers;
- Level-III: Oversight mechanism
- Self-regulation by the Publisher: Publishers are under an obligation to appoint a grievance redressal officer who will be solving the problems and complaints received. The officer shall respond to the complaint within 15 days.
- Self-regulatory body: Publishers can have more than one regulatory body. This regulatory body shall be headed by the Supreme Court and a High Court independent eminent person and have not more than six members. Any regulatory body will have to register itself under the Ministry of Information and Broadcasting.
- Oversight Mechanism: An oversight mechanism shall be formulated by the Ministry of Information and Broadcasting. “It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an inter-departmental committee for hearing grievances.”
The increase in the use of the internet has given rise to the use of social media and digital platforms. With this increase, the number of crimes also increased. The content that promoted nudity and child pornography created a lot of problems. Also, some content threatens the dignity of women to curb all these crimes. These Information Technology rules were formulated in the year 2021. These new IT rules will help the viewers to register their complaints if they have any and also will give justice to the victims. The use of social media platforms and digital media platforms should be done carefully. These platforms help a person to present their creative minds and share their thoughts with the whole world, now this is a good thing but if these contents and thoughts are interpreted in a different manner which is wrong, it can lead to some serious issues.
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