Cyber Liability Coverage
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This article is written by Harshita Shah who is pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

Introduction

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules of 2021 are proposed to put greater accountability on intermediaries to operate in alignment with the social, political, and moral fabric of the nation. More than 300 million of India`s population has on-boarded WhatsApp and other similar social media platforms and around 25,000 videos of child Sexual abuse material were circulated in India within 5 months until January 2020.

The API integration of social media platforms with other intermediaries has enabled the growth of more aware and vocal citizens who criticize and voice their opinions on politics and government policies. However, fake news and child pornographic material, sexual and rape imageries have also kept flourishing in large numbers and all this cumulatively have had repercussions on public order within the country.

Unlike the Press code and Program code under cable television networks regulation, and Central Film Certification board, there is no regulatory authority to monitor and manage these contents and hence, the government believes to put these intermediaries on the same footing. The present guidelines prescribe substantial accountability of intermediaries to avail safe harbor protection. In this article, an attempt has been made to provide an overview of key regulations under the new intermediary guidelines and a critique of the same.

Key regulations for social media intermediaries

  • Classification of Social Media Intermediaries– A social media intermediary is an intermediary which enables online interaction between two or more users and allows them to create, upload, share, circulate, modify or access any information. Intermediary includes websites that enable sharing of media, blogs, conducting online discussion forums, apps, and portals of social media networks and other similar service providers. However, for these rules, an intermediary will not include E-commerce websites, Internet service providers, and computer network access providers.

Based on the number of users, a social media intermediary having registered users beyond 50 lakhs, will be called a significant social media intermediary. A significant social media intermediary will be required to do additional due diligence along-with the due diligence that a social media intermediary is mandated to do so under rule 4. The classification was essential since many small social media intermediaries are tailoring to the needs of a particular group and which have a fewer number of users. Hence they cannot be expected to bear the cost of compliances and infrastructures such as automated tools and the manpower required in the form of human supervision, which is a mandate for Significant Social media intermediaries, as that can likely demotivate newcomers to step in. 

  • Due Diligence– The rules lay down the due diligence obligations that social media intermediaries and Significant Social media intermediaries will have to follow. These obligations are similar to obligations prescribed in Rule 3 of Intermediary Guidelines of 2011. However, the current guidelines layer additional due diligence obligations that will have to be followed by significant Social media intermediaries. Those are as follows-

A) Every six months Significant Social Media Intermediary has to prepare compliance reports, mention the complaints received, an action that was taken on such complaints, the subject matter of complaint, and whether such information was removed or disabled in pursuance of the complaint.

B) On receipt of any judicial order or order passed under section 69 of the IT Act, Significant Social media intermediaries that primarily provide services in the nature of messaging will have to identify and give details of the first originator of the message. The order will only be passed if the information in the message significantly impacts sovereignty and integrity of India, the security of the State, friendly relations with foreign states, or, leads to disturbance in public order, or incites to commit any cognizable offense, or is related to rape, sexually explicit material or child sexual abuse material or any such offence for which term of sentence is more than 5 years.  An intermediary is not under any obligation to disclose any other message or any other details of the first originator or any other details of any users.

C) Intermediary should inform the users about the purpose of any information that is transmitted on behalf of any other person for the direct financial benefit of such person. 

D) Deploy automated tools for identifying any content of child sexual abuse, child pornography, rape, and revenge porn. Also, to supervise the working of automated tools, significant social media intermediaries will have to employ human oversight who will be responsible for evaluating the accuracy and fairness of such tools. 

E) Mention physical contact address in India on its website or mobile-based application or both. 

F) If the significant Social media intermediary removes or disables access to any information, data, or communication link, then the originator of the message should be given a notice explaining the action being taken and the grounds for taking such action. The originator of the message should be given an opportunity to be heard and present his case as to why the information or link should be reinstated.

  • Grievance Redressal Mechanism

A 3-tier grievance Redressal mechanism should be established by Significant Social Media Intermediary consisting of-

  1. Chief Compliance Officer( Rule 5A) – The intermediary has to appoint a chief compliance officer from amongst its employees. This compliance officer has to be a resident of India, having an Indian passport. The main function of the officer is to ensure that its intermediary complies with the acts and rules. If any third-party information, data, or communication link is available to the intermediary bypassing the due diligence, then the compliance officer is liable to be prosecuted in any such proceedings. 
  2. Nodal Person of contact (Rule 5B) – Significant Social Media Intermediary shall appoint a nodal person who shall be available 24*7 for contact and co-ordination by law enforcement agencies. This nodal person is to be appointed from the employees of the intermediary who shall be a resident of India. 
  3. Resident Grievance Office (Rule 5C) – The name and contact details of the resident Grievance officer should be published on the website so that victims can directly address their grievances. The officer has to acknowledge the receipt of the complaint within 3 working days and resolve it within a month. Apart from the complaints by victims, the grievance officer has to acknowledge the order, notice, direction issued by the government or court.  A unique ticket number will be provided to the complainant to track the status of their complaint.
  • Complaint against non-consensual transmission– Any complaint against non-consensual transmission of any material that exposes the private area of any person, or shows such person in full or partial nudity or involved in any sexual act or conduct, including artificially morphed images, then the intermediary must remove or disable access to such content that is stored, hosted, published or transmitted by it within 24 hours. In the earlier Intermediary rules of 2011, the separate provision to takedown non-consensual transmitted information was not in place and hence victims had to file a cyber-complaint with the nearest police station, which would take time in removing or disabling such content.
  • Hosting of Unlawful Information– When an intermediary receives an order from a court or by government or its agency for hosting any information that, threatens the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, or morality or where it concerns with contempt of court, defamation, or incites to commit an offense, then the intermediary should immediately cease hosting, storing and publishing such information within thirty-six hours and not later than that.
  • Voluntary Verification– Significant Social Media Intermediaries will have to give an option to users to voluntarily verify their accounts. The verification mechanisms can be similar to KYC verification. After a user successfully verifies his account, his account would be given a badge indicating it as “Verified account” This will also prove helpful from the investigation point to trace the culprit. In the Blue Whale Game challenge, after many children had committed suicide, and since many social media accounts were not genuine, police officers had a tough time tracing the identity of people who post such challenges and their victims.
  • Notification of other intermediaries- The government may ask any other intermediary, which is not a significant Social media intermediary to comply with the rules made for Significant Social Media Intermediary if the intermediary permits transmission of any information which creates a material risk for Sovereignty and Integrity of India, the Security of state and friendly relations with foreign states or public order. Thus, this blurs the difference between the social media intermediary and Significant Social Media Intermediary on the number of users. Also, it is a very moot question of what information would constitute a material risk and the ambit of public order is very wide.
  • Investigation Purposes– If the intermediary is served with any order from the court to provide information in its possession or to assist law enforcement machinery for any investigation or evidence gathering purposes, then it should provide such information within 72 hours.

Digital Media Ethics Code Relating to Digital Media and OTT Platforms

In the ongoing pandemic situation, there is a tremendous surge in the number of viewers that OTT and other video streaming platforms have attracted.  At present in India, there are about 40 OTT and video streaming platforms. However, they do not have to obtain any clearance certificate from the censor board. Recently. There were series of controversy on Dharma Productions movie “Gunjan Saxena-The Kargil Girl” that was aired on Netflix and based on the real-life story of Ms. Gunjan Saxena, who was the only woman to be part of the Kargil War.

Taking the artistic liberty of expression freely and without any limitations, the makers of the film have over-dramatized the scenes by showing the Indian Air force as non-receptive and unwelcoming of women officers, to portray the character of Ms. Gunjan as someone who fought against all odds in a patriarchal institution at Air Force and home. Whereas, in reality, the Indian Air force was quite welcoming of women in their cadre.  

Another show by Alt Balaji “Virgin Bhaskar” was aired on YouTube as web series, where sexual acts and visual porn were sold in the form of a magazine. This was a prime concern because there were no age verification mechanisms in place to bar someone under age to access the content. Hence, due to these pressing issues the Ministry of Information and Broadcasting had given 100 days to OTT platforms to come up with a self–regulation code.

IMAI had announced the formation of the Digital complaint council (DCC) for registering grievances, but many OTT platforms did not give their consent for DCC. Hence, the government felt a strong need to censor the content on OTT platforms and other video streaming platforms. It is due to these reasons that the government came up with the Digital Media Ethics Code that should be taken into consideration by Digital Media content publishers and intermediaries.

Key regulations 

  • Application– This Digital Media Ethics Code is applicable to- 

The code of ethics under this part applies to intermediaries and Publishers that primarily enable the transmission of news, current affairs, and online curated content. Publisher of news and current affairs content, includes online paper, news portal, news aggregator news agency, and such other publishers. However, it does not include a replica of newspaper or user-generated content.

A news aggregator is simply a website or portal or application that by itself is not a publisher of the news but collects news from all sources and transmits such sources on its portal. E.g. News 360, google news, and Daily hunt are the news aggregators. Many news aggregator applications such as google news keep a track of your interest and show you relevant news. News agencies are an agency that sells news to broadcasters, radio or periodicals, such as Press Trust of India or PTI which also has an online segment for news. 

  • Regulatory Structure – To observe if the intermediaries abide by the Code of ethics, a 3 tier self-regulatory structure has been laid down where grievances can be addressed. 
  1. Grievance Officer at Level I.
  2. Self-Regulatory Body at Level II.
  3. Oversight Mechanism at Level III.

Grievance Officer at Level I– The applicable entity shall appoint a grievance redressal officer who is based in India to receive grievances. This grievance officer has to decide on the complaint within 15 days from the date of receipt of a complaint. Also, the entity has to put out the name and contact details of the grievance officer on the website or user interface of an application.

Self-Regulatory body at Level II–  At level II, applicable entities will create an independent self-regulatory body, which will be headed by a retired Supreme Court Judge or High Court Judge along-with six other members who shall be experts from the field of broadcasting, entertainment, technology, and media. The self-regulatory body should address grievances within 15 days, which has not been resolved by the grievance officer.

Oversight mechanism– Ministry of Information and Broadcasting will perform certain functions to oversee if the self-regulation code is followed by applicable entities. For this purpose, it has also constituted an inter-departmental committee where there will be representatives from other ministries as well. This inter-departmental committee can meet periodically to hear complaints arising out of decisions taken by grievance officer and regulatory body or where no decision has been taken by grievance officer a self-regulatory body. The committee also has suo moto powers to take up any matter for hearing. This confers wide power over the legislative body to step into the shoes of a quasi-judicial body.

Powers of Inter-Departmental Committee

  1. The committee may issue orders to block any content if it falls under Section 69-A (1) of the IT Act if the content is against the interest of sovereignty and integrity of India, defence of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence.
  2. The committee can warn and censure such content provider and can require them to reclassify the rating or make any appropriate classification.
  • Guidelines for certification –  News, current affairs, and online curated content publishers and Intermediaries shall assess all the content by description, category, and code of ethics laid in the schedule to these rules to determine whether a certificate should be granted. 
  1. Code of Ethics for News and Current affairs–  Intermediaries or publishers hosting or providing access to news and current affairs content shall follow the Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978 and Programme code under section 5 of cable Televisions Networks Regulation Act, 1995.
  2. Code of Ethics for Online curated content–  Curated content makers shall take into consideration that their content should not affect the sovereignty and integrity of India, the security of the state, and India`s friendly relations with foreign countries. Also while making any content on religious issues, featuring people`s beliefs, or practices content publishers and intermediaries shall give due regard to religious sentiments of the people and shall gauge if the content is sensitive enough or has the potential to lead to any negative outcome. 

For. e.g. in the recent Tandav series (See here), a large number of people objected to depicting Hindu gods in a bad light and addressed grievances and petitions. Hence, this code of ethics is essential, in a state like India where people have a strong belief in religion and rigid objections to any portrayal or narration which impairs their religious sentiments. code of ethics for curated content providers has been catalogue on different parameters and classified into category-specific guidelines, general guidelines, and issue-related guidelines. An attempt has been made to explain guidelines under each category.

C. Category Specific Guidelines – All content hosted, transmitted, or published shall be classified based on nature, type in the following rating categories.

a. U Rating –  If the content is classified in U Rating, it is suitable for children and all ages of people. U rating content shall not have any realistic violence, sex or nudity scenes, offensive language, or use and abuse of any Psychotropic, illegal, or any harmful substance, or depiction of any anti-social behaviour.

b. U/A 7+ – This content is suitable for children above 7 years. Content makers may depict violence in this category, but the violence should be for short while based on fantasy or comedy. In this category, there may be a display of affection, warmth, or romanticism without any clear sexual act or nudity. Any harsh language or use of the drug is not recommended.

c. U/A 13+ – Content in this category is suitable for children of 13 years or above. In this category, violence may be realistic but not gruesome and cannot be prolonged to show in great detail. Implied nudity or sexual act can be shown but not actual nudity or sexual activity. Any reference to drug and alcoholic substances can be made but actual consumption or use of such substances should not be shown. Access control mechanisms including parental locks should be made available for this content so that children can see this content only if their parents deem it fit for their viewing.

d. U/A 16+ –  Suitable for children of 16 years or above-  Content in this category is not intended for younger children. Violence in this category can include more graphic acts, including acts of sexual violence without glorifying the act in detail. The usage of drugs can be depicted without glamorizing or promoting it.

e. A Category – This category is restricted only to adults above 18 years of age. Violence in this category could be brutal and extremely disturbing. Language can be strongly abusive and can include intense sexual scenes, sexual acts including nudity. Use and abuse of illegal substances can be included. For all content in A rating categories, age verification mechanisms and access control mechanisms shall be put in place to restrict access by children below 18 years of age.

D. General and Issue Related Guidelines–  In the Digital Media Ethics Code, a kind of censorship is prescribed for online curated content makers by laying down general and specific guidelines that they should follow to obtain a certificate for the following category

General Guidelines

Issue Related Guidelines

Context

The setting of work, i.e. (Historical, Biographical, Contemporary, Realistic). Presentation of the content, Intent of content, any special merits of the work will be taken into consideration to determine if a certificate be granted. 

Theme

Themes will include genres such as Violence, Sex, Nudity, Paedophilia, Communal hatred or violence, Political hatred, or ideology, the manner of presentation of such theme will be taken into consideration while determining the category under which certificate should be granted.

Tone and impact

The impact of curated content will be judged in its entirety. Curated content will be marked on various parameters such as the portrayal of Dark, unsettling, pessimistic, anti-life, harmful behaviour to analyze its impact and classify in the ratings.

Target audience

Curated content makers will have to consider their target audience and determine other factors accordingly.

Discrimination

If the theme of the content is based on discrimination of caste, religion, gender, race, disability, sexuality, or if such theme seeks to challenge existing attitudes and if it has an offensive impact, then such content will be given higher classification.

Psychotropic Substances

If the content consumption of Psychotropic substances is glorified and its abuse is shown blatantly, it will receive the higher classification. Where the content shows consumption of such substances and also depicts the harmful effects of such substances, it will receive lower classification.

Imitable Behaviour

Content that shows detailed violent behaviour, including the use of knives, weapons, and glamorizes it will receive the higher classification. Any kind of content which can be imitated by children or can have a significant impact on children below 18 years and instigate them to try and imitate such act will receive the higher classification. Item songs with sexual suggestions, remarks will receive higher classification.

Violence

In curated content if violence is shown as a normal recourse to solutions, or if it encourages aggressive attitudes among characters by enjoying the brutality with which harm is inflicted, or where insensitivity is shown towards victims of sexual violence or other than such content will receive the higher classification.

Sex/Nudity

The portrayal of overly sexual behaviour transcending vulgarity, obscenity, or an explicit sexual act with nudity or partial nudity will receive higher classification.

Fear/ Threat

If the content of fear or horror is based on a fantasy setting, it will receive a lower classification. Other factors such as frequency, length, detail of unsettling horror scenes, sound and music, realism, and supernatural elements will also be taken into consideration for the classification.

Language

The language that offends sexual, religious, caste, racial association, minority groups will be given higher classification.  

Conclusion

In Antony Clement Rubin v. Union of India, the Court was presented with the same scenario regarding the traceability of the first originator of a message and linking of Aadhar with social media accounts for verification. It was suggested by an expert professor of IIT Bombay in this petition that tracing the first originator could make the messages more prone to falsification. Also, Significant Social Media intermediaries will have to store all messages, media on their servers which leaves this information at more risk of being hacked, compromising the security of users.

The rules do not specify how such information has to be stored and security protocols to be followed where such information has to be stored for evidence. News and current affairs also include analysis, about recent events primarily of socio-political, economic, or cultural nature, available over the internet or computer networks. Thus, the government. can take a wider ambit of offenses pertaining to sovereignty and integrity of India, security of the state, friendly relations with foreign states, or public order or incitement to an offense, under which govt. can ask the intermediaries to disclose the first originator of the message or can ask any publisher of news to take down its content.

The courts will be hence burdened to determine if such information or analysis threatens any of the ground mentioned above. The new rules are trying to create censorship over public analysis of any such information. Censorship on public opinion or analysis is not a good move because it would discourage people who do not belong to any institution or union to voice their opinions freely. Criticisms can be harsh or outrageous, people should have the liberty to resort to their choice of expression, however only subject to knowledge about the facts.

Laying down guidelines for OTT platforms is a good and required move after we witnessed the recent controversy on “Tandav” and “Gunjan Saxena- The Kargil Girl”. However, oversight by govt. and the suo moto powers given to ministry to block any content under Section 69-A (1) of IT act will give all-encompassing powers to legislature and violate the doctrine of Separation of Powers. In a recent PWC study, it has been found that India is the fastest-growing OTT market where subscription is the prime driver of revenue, increasing at a 30.7 CAGR from $ 708 million in 2019 to $ 2.7 billion in 2024.  Hence, the proposed regulatory structure and the extensive powers conferred on the ministry should be re-evaluated. 

References

  1. Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
  2. https://www.livelaw.in/pdf_upload/pdf_upload-370126.pdf
  3. https://indiankanoon.org/doc/80437106/
  4. In The Supreme Court of India Original Jurisdiction, Extraordinary Civil Writ Jurisdiction Writ Petition (Civil) No.: 1080 Of 2020
  5. https://scroll.in/latest/886712/sacred-games-row-delhi-high-court-says-actors-cannot-be-held-liable-for-their-dialogues.
  6. https://theprint.in/opinion/newsmaker-of-the-week/gunjan-saxena-on-netflix-was-bharat-ki-beti-until-facts-came-tumbling-out/486932/

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