This article is written by Tanvi Gala who is pursuing a Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho.

Introduction

The development in technology and internet-related domains have risen tremendously and the current pandemic has accelerated the way people use social media platforms to communicate with others. Social media platforms have had a great impact on the citizens of India. It has empowered people to raise their voice and support the cause that matters to them and has also enabled us to freely exercise our freedom of speech and expression to reach a larger audience. 

Recently, there has been an upsurge in the spread of fake news, instances of the use of offensive language, pornography, derogatory and indecent contents and blatant disregard for religious sentimentalities through the Over The Top (OTT) platforms and social media are also growing. Over-the-Top platforms mean streaming services provided over the Internet, like Netflix, Amazon Prime Video, Hotstar. The liability of these platforms escalated after the incidents during Farmer’s protest, which took a violent turn. The government directed Twitter to take down the accounts, that the government felt, were inciting violence through the use of hashtag “farmer genocide.”

In the press release by the Ministry of Information & Broadcasting it was observed “the increasing instances of misuse of social media by criminals, anti-national elements have brought new challenges for law enforcement agencies. It is found that currently there is no robust complaint mechanism wherein the ordinary users of social media and OTT platforms can register their complaint and get it redressed within a defined timeline. Lack of transparency and absence of robust grievance redressal mechanisms have left the users totally dependent on the whims and fancies of social media platforms.”

OTT Regulations, 2021

Keeping the above in mind, on February 26, 2021 the Ministry of Electronics and Information Technology (MeITY), under the powers conferred to it by Sections 69A(2), 79(2)(c) and 87 of the Information Technology Act, passed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules) for regulating the OTT services, social media platforms and digital media.

The rules are segregated into three parts. Part I deals with the definitions, Part II contains the due diligence requirement to be observed by social media intermediary and implementation of the grievance redressal mechanism which will be administered by the Ministry of Electronics and Information Technology and Part III deals with the code of Ethics and procedure for digital media which will be administered by the Ministry of Information and Broadcasting.

Part II of the Rules deals with the due diligence requirement necessary for the social media intermediary and additional requirements to be followed by the significant social media intermediary. Under Section 2(1)(w), an intermediary means a person who obtains, collects or transfers the records or offers any service relating to that record and includes telecom, network, web-hosting service providers, cyber cafes, search engines and online marketplaces. And social media intermediary means a provider who allows its user to interact online with other users using the providers’ platform.

The Rules provide a clear distinction between social media intermediary and significant social media intermediary. A significant social media intermediary means a social media intermediary with more than 50,00,000 registered users in India.

Due diligence by an intermediary

• The intermediary shall publish its rules, privacy policy or user agreement, on its website or mobile application. These rules shall inform the user about the information that the user cannot publish, host, and display like any information that is defamatory, harmful to a child, etc. The rules/ privacy policies shall be sent to the users at least once a year and in case of non-compliance of the rules, the intermediaries can terminate the usage rights of the user.
• When an order has been passed from an appropriate government for the removal or disabling of any information published, hosted on the intermediaries’ website, the intermediary has 36 hours to remove such content. 
• The intermediaries can voluntarily remove/disable the information published, which contravenes the current laws. The information that is removed should be preserved for at least 180 days for investigation purposes, or as required by the court. 
• The intermediary shall retain the registration information of the user for a period of one hundred and eighty days after any cancellation or withdrawal of his registration.
• When the intermediary receives a written order from the courts for the purpose of seeking information, the intermediary shall within 72 hours of such order, provide information under its control or provide assistance to the Government agency which is lawfully authorized to investigate the incidents.
• The intermediary shall have a Grievance Redressal Mechanism where users or victims are able to make complaints. The Grievance Officer shall acknowledge a complaint within 24 hours and resolve the same within 15 days. When the content of the complaint is related to full or partial nudity or sexual act, the Officer shall remove or disable access to such content within 24 hours.

Further due diligence by the significant social media intermediary

In addition to the rules provided in Rule 3, the significant social media intermediary shall:

• Appoint a Chief Compliance Officer who shall be a key managerial person or senior employee, to ensure compliance with the Acts and rules. Such Chief Compliance Officer is liable for proceedings relating to relevant third-party information, data or communication link when the intermediary fails to discharge its duties.
• Appoint a nodal contact person for 24×7 coordination with law enforcement and to ensure that the intermediary is compliant of their orders.
• Appoint a Resident Grievance Officer to handle the grievance redressal Mechanism under the Code. The significant social media intermediary shall have a physical contact address in India.
• Publish compliance report every month with details of complaints received and action taken as well as the details of the contents removed proactively by the significant social media intermediary.
• Enable identification of the first originator of message as required under a court order for the purpose of prevention, investigation, prosecution or punishment of an offence. 
• Be a clear distinctiveness for the users to the services of advertised, marketed, sponsored, sales directed content, which have a direct financial gain for the intermediary.
• Deploy technology-based automated tools to identify obscene images and display a notice to any user attempting to access such information. This should be done with keeping the freedom of speech and right to privacy in mind.
• Enable voluntary user verification of their account.

The intermediary shall comply with all or any of the obligations required by the significant social media intermediary if the services of that intermediary allow the transmission or publication of information, which may create a substantial risk of harm to the sovereignty, and integrity of India. Where an intermediary fails to observe these rules, he shall be liable for punishment under any law in force.

Part III of the Rule applies to publishers of news and current affairs content, and publishers of online curated content. The Rules establish a three-tier grievance redressal mechanism for news publishers and OTT platforms and digital media. The structure of the three tiers will be:

Level I – Self-regulation by the publisher.

Level II – Independent body by the publishers.

Level III – Oversight mechanism by the Central Government.

Level I – A publisher shall establish a grievance redressal mechanism and shall appoint a Grievance Officer, who shall be the contact point for receiving any grievance relating to the Code of Ethics and act as the nodal point for interaction with the complainant, the self-regulating body and the Ministry. The officer shall make sure that a complaint is solved in 15 days. The online-curated content has to be classified in the categories as provided in the Schedule to the Rule. 

Level II – One or more self-regulatory bodies of publishers constitute an Independent body, which is headed by a retired judge of the Supreme Court or a High Court, or any person from the relevant field of media. The self-regulating body shall register with the Ministry within 30 days from its constitution. The functions of the self-regulating body are:

• To oversee and ensure that the publishers follow the Code of Ethics;
• To guide or advise the publishers on various aspects and also to ensure compliance to the Code of Ethics;
• To address grievances and hear appeals which have not been resolved within fifteen days.

They are empowered with issuing warning, censuring, admonishing or reprimanding the publisher. In case of online-curated content, it can direct the publisher to re-classify rating, edit synopsis, modify content descriptor, age classification and access control. When the publisher fails to comply with the advice of the body, they shall refer it to the Oversight Mechanism.

Level III – The Ministry of Information and Broadcasting shall develop an Oversight Mechanism. The Ministry shall appoint an “Authorised Officer” who acts as the Chairman of the Committee. The Committee shall hear the complaints, appeals regarding any violation or contravention of the Code of Ethics. It can execute the subsequent functions: 

• Publish a charter for self-regulating bodies.
• Establish an Inter-Departmental Committee (Committee) for hearing grievances; the Committee shall consist of representatives from different Ministries of the Government.
• Issue orders and directions to the publisher for maintenance and adherence to the Code of Ethics.
• Delete or modify content for preventing incitement of an offence.
• Block the published contents in case of emergency.

Part III of the Rules also require the publishers to furnish information to the Government and periodically disclose information regarding the grievance redressal.

Code of Ethics

According to the Code of Ethics provided in the Rules, News and current affairs shall follow Norms of Journalistic Conduct of Press Council Act, Programme Code of the Cable Television Act. It also provides for certain principles to be observed by the OTT platforms like Netflix, Amazon Prime. 

The online-curated content shall not affect the sovereignty and integrity of India and take into consideration the multi-racial and multi-religious content and exercise due caution and discretion. The publishers of online-curated content have to classify their content into age-based content category, display category, restriction of access to a child, measures to improve accessibility by persons with disabilities.

Age-based content

• “U” (Universal) for children,
• “U/A 7+” for children aged 7 years and above,
• “U/A 13+” for children aged 13 years and above,
• “U/A 16+” for persons aged 16 years and above,
• “A” (Adult).

The publishers have to display the classification rating at the beginning of every program and also provide a parental lock feature on their platform. The Rules also provide guidelines for the classification of curated content into context, theme, tone and impact, target audience. 

To conclude, there have been several debates since the Rules have been published. Following the IT Rules 2021, social media companies in India have already begun looking for an executive to liaison with law enforcement. These laws give power to the Central Government to act, direct, block, delete the contents published on these platforms. While it is necessary to implement some rules to regulate the OTT platforms and social media companies, the government should be kept in check to prevent them from making any arbitrary decisions towards the online contents, as that would be a contravention to the freedom of speech and expression.

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