Explained: Section 87(2) of IT Act

India is an emerging digital hub witnessing significant developments in technological and digital field. From the social media giants to small startups, have flourished their business in online platforms. With the availability of internet at affordable costs, the number of users in the social media platforms have also significantly increased. With the abundant uses and opportunities the digital media platforms provide, it also poses threats and abuse of social media.

For this reason, a need was felt for stringent rules for any form of communication of information via intermediaries. Pursuant to this, the Ministry of Electronics and Information Technology released the draft Information Technology (Intermediary Guideline) Rules, 2018 for public consultation. Consequently, on the 25 February of this year, the Government by exercising its power under section 87(2) (1) (z) and (zg) issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The 2021 Rules replace the Information Technology (Intermediaries Guidelines) Rules, 2011[1]. The earlier set of rules which were only applicable to intermediaries. The new Rules also significantly broadened the area of intermediary oversight, as well as bringing online news content and Over-The-Top (“OTT”) platforms under its purview.

Section 87 of the Information and Technology Act, 2000 confers powers to the Central Government to make rules. It clearly states that the Central Government is empowered to make rules to carry out the provisions of the Act by notification in the official gazette. Further sub-section 2 of section 87 deals with the various powers exercised by the Government in this regard.

Need for amendment:

In the recent years, crimes through internet have increased. According to the report published by cybersecurity software company, Norton Lifelock, a whopping 27 million Indian adults were victims of identity theft in the past 12 months, and 52% of adults in the country do not know how to protect themselves from cybercrime. “In a year of lockdowns and restrictions, cybercriminals have not been deterred. More Indian adults fell victim to identity theft in the past 12 months and most are concerned about data privacy,” said Ritesh Chopra, director sales and field marketing, India & SAARC Countries, NortonLifeLock.

The social media provides users a platform to showcase their talent and publish information. But the abuse of social media services by way of spreading fake news, sharing morphed images of women and children, increased child pornography, online intellectual property violation and unethical business practices are growing. The users under the defense of free speech are using abusive language, posting defamatory and obscene contents, creating disrespect to religious sentiments through social media platforms. Also, complaints and issues were raised regarding the obscene contents and soft porn published in social media and OTT platforms which were easily available to children. Some of the platforms delete or remove content posted by users without the opportunity of being heard and the time and creativity invested by the user goes in vain. Currently these issues faced by large number of ordinary users of OTT platforms and social media are left unchecked and unredressed. The lack of transparency and absence of grievance redressal mechanism have left the users totally dependent on the whims and fancies of social media.

SALIENT FEATURES OF THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021 :

  • Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is embedded with three parts. Part II of the Rules deals with Due Diligence by Intermediaries and Grievance Redressal Mechanism. Rule 3 of the Guidelines provides a list of due diligence to be followed by Intermediaries, including social media intermediaries and significant social media intermediaries for availing the safe harbor provision under section 79 of the Information and Technology Act, 2000.
  • The intermediaries are required to establish grievance redressal mechanism and effectively resolve the complaints and issues of the users. The Rule also mandates the intermediaries to appoint a Grievance Officer and share the name and contact details of such officer on the platform. Further, it requires the Grievance Officer to acknowledge the complaint within twenty four hours and resolve it within fifteen days from its receipt.[2]
  • The intermediary shall periodically, and at least once in a year, inform its users of its rules and regulations, privacy policy or user agreement or any change in the rules and regulations, privacy policy or user agreement, thereby keeping the users up-to-date.[3]
  • The rules and regulations, privacy policy or user agreement of the intermediary shall inform the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting other nation.
  • The Rules distinguishes social media intermediaries and significant social media intermediaries based on the number of users in such platform. Social media intermediary means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services. Significant social media intermediary is a  social media intermediary having more than 5 million registered users in India.
  • Rule 4 poses additional Due Diligence to be followed by significant social media intermediaries.
    • Appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and Rules. Such a person should be a resident in India.
    • Appoint a Nodal Contact Person for 24×7 coordination with law enforcement agencies. Such a person shall be a resident in India.
    • Appoint a Resident Grievance Officer who shall perform the functions mentioned under Grievance Redressal Mechanism. Such a person shall be a resident in India.
    • Publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary.
    • 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, or 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. Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.
    • Significant social media intermediary shall have a physical contact address in India published on its website or mobile app or both.
    • Voluntary User Verification Mechanism: Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with demonstrable and visible mark of verification. 
    • Giving Users An Opportunity to Be Heard: In cases where significant social media intermediaries removes or disables access to any information on their own accord, then a prior intimation for the same shall be communicated to the user who has shared that information with a notice explaining the grounds and reasons for such action. Users must be provided an adequate and reasonable opportunity to dispute the action taken by the intermediary.[4]
  • An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.[5]
  • Notified under section 87 of Information Technology Act, these Rules empower the Ministry of Information and Broadcasting to implement Part-III of the Rules which prescribe the following:
  • Code of Ethics for online news, OTT platforms and digital media: This Code of Ethics prescribe the guidelines to be followed by OTT platforms and online news and digital media entities.
  • Self-Classification of Content: The OTT platforms, called as the publishers of online curated content in the rules, would self-classify the content into five age based categories– U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”. The publisher of online curated content shall prominently display the classification rating specific to each content or program together with a content descriptor informing the user about the nature of the content, and advising on viewer description (if applicable) at the beginning of every program enabling the user to make an informed decision, prior to watching the program.
  • Publishers of news on digital media would be required to observe norms of journalistic conduct of the press council of India and the program code under the cable television networks regulation act thereby providing a level playing field between the offline (print, tv) and digital media.
  • three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
    • 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: Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.
  • Self-Regulatory Body: There may be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. Such a body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not be been resolved by the publisher within 15 days.
  • Oversight Mechanism: Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances. 

LIMITATIONS:

While the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is appreciated for the creating user oriented privacy policy and intermediary responsibilities, they are criticized for the same reasons and more by various critics.

  1. Shortcomings in Rule 4:
  2. Additional due diligence to be observed by significant social media intermediary :

Rule 4 of the guidelines requires the significant social media intermediaries to follow due diligence in addition to the Due diligence specified in Rule 3. Many significant social intermediaries even though they have number of users exceeding the threshold specified in the guidelines, the number of active users in such platforms are considerably less. Such intermediaries are covered under the ambit of the rule and this provision lacks clarity.

  • Localize operations of Social media Intermediaries:

Rule 4 mandates the significant social media intermediaries to localize their operations.  The significant social media intermediaries are required to appoint Chief Compliance Officer, Nodal Contact Person, and Resident Grievance Officer who shall be physically resident of India. Rule 4(5) provides that the significant social media intermediary shall have a physical contact address in India published on its website, mobile based application or both, as the case may be, for the purposes of receiving the communication addressed to it. This provision poses challenge to significant social media intermediaries providing repository services or corroborates with other companies as their services are neutral on where the users reside and need not have physical presence in operative country.

  • ‘Services in the nature of messaging’ :

Rule 4(2) provides that ‘ A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction.’ The terms ‘providing services primarily in the nature of messaging’ creates ambiguity as to whether the rule is applicable to social media intermediaries that provide messaging as an ancillary offering. It is known fact that almost every online service platform provides messaging feature. Even though the primary feature of the service is different, the direct messaging feature inbuilt in the platform also provides a channel to communicate.

  • Tracing the first originator:

This provision poses threat to the Right to Privacy of users. The end-to-end encryption option provided by the intermediaries will be jeopardized in order to trace the first originator of the content. Failure on the part of the intermediaries to secure privacy to users may discourage them in using the service.

  • Additional cost and burden on small businesses:

The provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 requires intermediaries to localize their operations, appoint officers who are physically resident in India. This results in additional costs on logistics and human resource. Further, the Rule also mandates the intermediaries to install automated tools to monitor the unlawful contents. The term unlawful content is vague and creates scope for over censoring contents. This also adds burden to small startups.

CASES:

1. The Supreme Court, in a judgment passed in December 2018 on a petition filed by NGO Prajwala, had asked the government to frame guidelines and implement them within two weeks “so as to eliminate child pornography, rape and gang rape imageries, videos and sites in content-hosting platforms and other applications.”[6]

  • The Supreme Court in Facebook Inc. V. Union of India and ors[7], directed the ministry of Electronics and Information Technology to apprise the timeline in respect of completing the process of notifying the new IT Rules.
  • In Shreya Singhal V Union of India[8], the Supreme Court struck down section 66A of the Information Technology Act, 2000 as unconstitutional for having chilling effect on free speech, further, it held that ‘actual knowledge’ requirement for an intermediary to take down content has to be read to mean either an intimation in form of court order or being notified by the government and such requests must be restricted to limitation listed by Article 19(2) of the Constitution.
  • In Kent RO Systems Ltd. and Ors. V. Amit Kotak and Ors.[9], the Hon’ble High Court of Delhi refused to compel the intermediaries to screen content that infringes Intellectual Property laws on an ex-ante basis. The court held that requiring intermediary to screen any kind of information would change its role from a facilitator to an adjudicator. Section 79 of the IT Act and the IT Rules 2011 requires intermediary to only remove the contet on receipt of a Court order or Government notification. The Amendment in Rule 3(9) of IT Rule 2021 places responsibility on the intermediary to scrutinize the user generated content and determine its legality.
  • In Justice K.S Puttuswamy V Union of India[10], the Supreme Court held that ‘the Right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty under Article 21 of the Constitution’. In complete disparity, the traceability requirement under Rule 3(5) of IT Rules, 2021 requires the intermediary to enable the tracing of originator of information on the platform as maybe required any Government agencies. Such Rule will lead to breaking of encryption and compromising the privacy of the individuals making use of such services.

Conclusion:

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is boon to reduce the cybercrime rates in India. The amendment to 2011 rules have made the provisions of the Information Technology Rules, 2021 more stringent by transferring the responsibility of checking unlawful contents to the intermediaries. The Code of Ethics and Procedure and Safeguards in relation to Digital media adds to the safe viewing of contents in OTT and digital platforms. But the criticisms in relation to the Rules cannot be left unchecked. The Rule poses serious threat to Right to Free Speech and Right to Privacy possessed by the ordinary users. If the issues are rightly addressed and provided for, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 will prove to be a fruitful legislation.


[1] MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY NOTIFICATION New Delhi, the 25th February, 2021

[2] Rule 3(2), The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021

[3] ibid

[4] Press Information Bureau- Government of India- Ministry of Electronics & IT, 25 FEB 2021 2:44PM by PIB Delhi

[5] ibid

[6] SUO MOTO WRIT PETITION (CRL)   No(s).    3/2015
[7] Transfer Petition(s)(Civil) No(s).1943-1946/2019
[8] WRIT PETITION (CRIMINAL) NO.167 OF 2012

[9] 2017 (69) PTC 551 (Del)

[10] WRIT PETITION (CIVIL) NO. 494 OF 2012

Author: Pruthvi K from SDM Law College, Mangalore.


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