By: Adil Zawahir,Flywork.io Team
In the last week of February 2021, the Government issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The Rules propose significant changes in how internet intermediaries, including social media intermediaries, are regulated in India and propose new regulatory mechanisms for digital media outlets and streaming services. The specified changes place special emphasis on the protection of women and children from sexual offences on social media. The Rules also stress the need for online content publishers and social media intermediaries to subject themselves to domestic laws.
Changes from the earlier Intermediary Rules
Specific changes to compliance and grievance redressal mechanisms
SSMIs have to appoint a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer.
SMIs offering messaging services will have the responsibility to help law enforcement agencies identify and track the first originator of any contentious or problematic information.
This must only be employed as a measure of last resort and can only be executed through an order of a competent court or a Competent Authority.
Digital news publishers and streaming services (Over-The-Top platforms) will now have to notify the government of their operations, set up self-regulatory organizations and apply a complaints redressal mechanism, as well as adhere to a Code of Ethics, which have only been applicable to print and TV news so far. A three-level grievance redressal mechanism has also been mandated with different levels of self-regulation.
Some concerns regarding the new Rules
Devdutta Mukhopadhyay, a Litigation Counsel at Internet Freedom Foundation, points out that while “decency or morality” are grounds available under Article 19(2) of the Constitution to impose reasonable restrictions upon free speech, it has been deliberately omitted from the text of Section 69A. The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit.
Although workshops/seminars on online content regulation were held by the Film Certification Appellate Tribunal and the I&B Ministry, there was insufficient public and stakeholder consultations to adhere to the true spirit of democratic participation in bringing about the new Rules.
Social media intermediaries being mandated to trace the first originator of contentious messages would entail storing sensitive information or breaking end-to-end encryption. This would not only violate the users’ right to privacy but also weaken overall security.