On Thursday, the Narendra Modi government unveiled the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. Framed by The Ministry for Electronics and IT, under the Information Technology Act, 2000, these rules will replace the 2011 guidelines for internet companies.
Hence, social media giants such as Twitter, Facebook, WhatsApp, and OTT players like Netflix, Amazon Prime, Hotstar, Zee5, among others, will soon have to comply with a wider range of accountability measures by the BJP government in India. These guidelines also focus on the news presented on digital media.
These new rules will force big social media companies to remove unlawful content as specified by the government agency or a court order within the limited time frame. There is a separate section of rules outlines for sexual content which “exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual activity or is in the nature of impersonation including morphed images.” The time frame to remove this content post the notice is 24 hours.
IT minister Ravi Shankar Prasad in a press conference on Thursday said, “Social media is welcome to do business in India… they have got good business. They have got a good number of users and also empowered ordinary Indians. But users must also be given a proper forum for resolution of their grievances in a time-bound manner against abuse and misuse of social media.”
The Indian Express reported, “Although the government had been working on these rules since 2018, work on issuing the new guidelines gained fresh momentum after the de-platforming of former US President Donald Trump and the more recent spat between the IT ministry and microblogging site Twitter over removal of certain accounts affiliated with the farm protests.”
Government Rules Tracking ‘First Originator’
Under these rules, social media companies that provide messaging services (Whatsapp or Signal) will have to allow the government to access the “first originator” of the information. This is a move aimed by the government to track down individuals who spread fake information or carry out illegal activities. Cyber experts fear that this move may require these companies to do away with their end-to-end encryption that will be a violation of personal privacy and unleash a lot of surveillance in the hands of the government.
A government release stated, “Significant social media intermediaries providing services primarily in the nature of messaging shall enable identification of the first originator of the information that is required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States.”
“Public order or of 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”, it further added.
Ethics Code For Digital News, OTT Players
These new guidelines have a section called ‘Code of Ethics and Procedure and Safeguards in Relation To Digital/Online Media’. These require OTT platforms to self-classify content into five age-based categories — U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). They will also have to incorporate parental locks for certain specified content and show the rating for all programming.
“Media freedom is absolute but with responsible and reasonable restrictions. Self-restriction is called responsible freedom,” I&B minister Prakash Javadekar said at a Thursday press conference.
Publishers of news on digital media would be compelled to observe norms of journalistic conduct of the PressCouncil of India and the programme code under the ‘Cable Television Networks Regulation Act’, similar to their corresponding print and TV companies. The government calls these rules as a “level playing field between the offline (Print, TV) and digital media.”
Three officers system
Social media companies, who are both intermediaries and carriers of information will be required to appoint three employees. These include:
- An appointment of “a nodal person of contact for 24×7 coordination with law enforcement agencies and officers”
-An appointment of a resident grievance officer who will undertake all functions mentioned under the grievance redressal mechanism.
-An appointment of a ‘Chief Compliance Officer’ who “shall be responsible for ensuring compliance with the Act and Rules”.
For the ‘Code of Ethics’ to have complied carefully, the government aims to establish a three-tier structure under which all the complaints and grievances can be addressed.
Stage one will be described as self-regulation by an applicable body, which needs to appoint a grievance redressal officer hailing from India who take a decision on every complaint registered. Further at the second level, there will be self-regulation by self-regulating bodies of the applicable companies. In the final stage, at the governmental level, the I&B ministry will establish an inter-departmental government committee. This body is said to be responsible for solving all the grievances coming out of the decisions made by the self-regulating bodies.
What do the experts say about these government-issued guidelines?
Several experts feel that these new rules issued by the BJP government violate constitutional freedoms.
Internet Freedom Foundation, in its initial comments on the rules stated, “This oversight mechanism [ethics code] is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation.”
Further, the IT Act of 2000 does not cover news media in its umbrella, hence these guidelines lack a legislative backup.
The Bloomberg Quint reported that Rajat Prakash managing partner at Athena Legal, in an email statement said, “The regulations will be applicable even to platforms which may not have a physical presence in India but are conducting business activity in India by targeting Indian consumers.”
The IIF has also expressed concerns over the directive of these rules, especially the fact that these guidelines are most likely to break end-to-end encryption.
“Without thought or involving technical experts in an open consultative process, without any data protection law or surveillance reform, this is being tinkered with by introducing the requirement of “traceability”, mentioned the IIF.