Recently, the novel IT Rules are the hot topic of news. It is alleged widely that these rules violate the privacy of the individual and hence challenged before various courts in the country.
The background of this conundrum goes back to the direction issued by the Supreme Court of India in the case of Re: Prajwala Letter case 2018. In this case the Apex Court directed the Government of India to frame necessary guidelines to eliminate child pornography, rape and gang-rape imageries, videos and sites in content hosting platforms and other applications. In furtherance of these directions the ad-hoc committee Rajya Sabha was formed to study and analyse the issues of pornography and its impact on children and society; furthermore, the committee recommended for the provision of identification of the first originator of such contents. The Government of India in consonance of Supreme Court's directions and Committee's recommendation by exercising its power under Section 87(2) of the Information Technology Act, 2000 introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. These guidelines will supersede the Information Technology (Intermediary Guidelines) Rules 2011.
Key Points of the Rules:-
RULES FOR SOCIAL MEDIA INTERMEDIARIES
Ø The social media intermediaries have been classified under two categories based on the number of users i.e.
- Social Media Intermediaries
- Significant Social Media Intermediaries
Ø The Part-II of the Rules provide for due diligence to be followed by intermediaries and failure of such will result into non-application of safe harbour provision. The Section 79 of the IT Act, 2000 provides legal immunity to the social media intermediaries from any content posted on their platforms.
Ø It also provides for mandatory grievance redressal system wherein the intermediaries shall appoint a Grievance Officer who shall deal with the complaints. The Officer shall acknowledge the complaint within 24 hours and resolve the issue within 15 days from the date of receipt of complaint.
Ø The Rules also provide provisions for the protection of dignity and safety of users. It provides that Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation
including morphed images etc. This complaint can be made by an individual or any other person on his/her behalf.
Ø The Section 4 of Part-II is regarding additional due diligence to be observed by the significant social media intermediaries. These intermediaries need to appoint Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer, all of whom should be resident in India. Furthermore, they need to 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.
Ø The significant social media intermediaries in the business of messaging have to enable "identification of the first originator of the information" which means to trace the person who first sent the message. This was required for the purpose 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.
Ø The intermediaries upon the order of court or notification by the appropriate government 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.
RULES FOR NEWS PUBLISHERS, OTT PLATFORMS AND DIGITAL MEDIA
Ø The Government brought video streaming over-the-top (OTT) platforms under the ambit of the Ministry of Information and Broadcasting.
Ø The OTT platforms has to classify its content into five categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult).
Ø Platforms have to implement parental locks for content classified as U/A 13+ or higher and reliable age verification mechanisms for content classified as "A".
Ø The platforms will also have to display the description regarding the rating specific to content and also the nature, description of the same.
Ø The Publishers of News on Digital Media would be required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act 1995 thereby providing a level playing field between the offline (Print, TV) and digital media.
Ø The Rules also provide for three level grievance redressal system:
Level 1:- Self-regulation by the publishers;
Level 2:- Self-regulation by the self-regulating bodies of the publishers
Level 3:- Oversight mechanism
The Rules have been highly criticised but it has some positive aspects as well. The Rules provide for removal of non-consensual intimate picture within 24 hours and the redressal system for the same. It further provides for the parental lock system and description of the content which prevents children from viewing adult content. Also, the Rules provide for adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.
However, the lacunas of the Rules cannot be overlooked. The fuss which has been created regarding the Rules is the 'Traceability of the Message provision"; this provision will result into the violation of end-to-end encryption. The end-to-end encryption means that the intermediaries will not have access to the content of the message of the user; the implementation of the Rules will violate the right to privacy of the users which is the basic fundamental right of an individual. Furthermore, the Government will be the final adjudicator of the objectionable speech so the probability of infringement of the right to speech increases. The Rules also provide for establishment of redressal mechanism by the intermediaries which will vary from intermediary to intermediary. The widely alleged issue of the Rules is right to privacy which is a matter of great concern.
