There is no doubt that in the present era Social Media Platforms have been empowered worldwide and have been used by the people to show their creativity, ask questions, share their views whether positive or negative and criticise some including Government. India is also not untouched with the expansion of Social Media Platforms and due to extensive spread of mobile phones, Internets etc., common people are using these platforms in very significant way. Indian Government has acknowledged the right of every citizen and welcomes social media companies to operate in India, do their business to earn profits. However, they will have to be accountable to the Constitution and laws of India.
There are 530 Million WhatsApp users, 448 Million users of YouTube, 410 Million Facebook users and 210 Million Instagram users (Source from PIB dated 25 FEB, 2021). It has been seen in last many years that Social Media Platform has been misused by the people in unethical manners which gave some serious concern and consequences. Some disturbing developments are spreading fake news regularly which requires a check and balance. These concerns have been raised from time to time in various forums including in the Parliament and its committees, judicial orders and in civil society deliberations in different parts of country. Such concerns are also raised all over the world and it is becoming an international issue.Instances of use of abusive language, defamatory and obscene contents and blatant disrespect to religious sentiments through platforms are growing.
Now, Indian Government has felt that Social Media Platforms have empowered ordinary users but they need accountability against its misuse and abuse. Therefore, The Government of India through the Ministry of Electronics and Information Technology has recently issued a Notification dated 25th February, 2021, for implementing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules), in super session of the Information Technology (Intermediaries Guidelines) Rules, 2011 While finalizing these Rules, both the Ministries of Electronics and Information Technology and Ministry of Information and Broadcasting undertook elaborate consultations among themselves in order to have a harmonious, soft-touch oversight mechanism in relation to social media platform as well as digital media and OTT (over the top) platforms etc.
These new Rules empower ordinary users of social media, embodying a mechanism for redressal and timely resolution of their grievance. These new Rules are about digital media and OTT focuses more on in house and self-regulation mechanism whereby a robust grievance redressal. The proposed framework is progressive, liberal and contemporaneous It seeks to address peoples’ varied concerns while removing any misapprehension about curbing creativity and freedom of speech and expression The guidelines/rules have been framed keeping in mind the difference between viewership in a theatre and television as compared to watching it on Internet mechanism has been provided while upholding journalistic and creative freedom. Further, these Rules have been implemented in order to balance the need for self-regulation of online content as well as to ensure the artistic and creative freedom of the creators of online content.
Apart from its application to intermediaries as defined under section 2(w) of the Information Technology Act,2000, the new rules are applicable to Social Media Intermediaries (SMIs), Significant Social Media Intermediaries (SSMIs) and Digital Media Platforms(DMPs). Additionally, Original Curated Content Platforms(OCCPs) have also been brought under the ambit of these new rules. The new guidelines/rules are aimed at increasing the liability of intermediaries with regard to the information being made available by them. The added mechanisms ensure that the intermediaries take immediate action with regard to any unlawful or infringing information being made available by them. Some of these mechanisms are highlighted below.
Rational and Justification of New Guidelines/Rules
The Government has stated that these Guidelines/Rules substantially empower the ordinary users of digital platforms to seek redressal for their grievances and command accountability in case of infringement of their rights. In this direction, the following developments are noteworthy:
- The Supreme Court in suo-moto writ petition (Prajjawala case) vide order dated 11/12/2018 had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications.
- The Supreme Court vide order dated 24/09/2019 had directed the Ministry of Electronics and Information Technology to apprise the timeline in respect of completing the process of notifying the new rules.
- There was a Calling Attention Motion on the misuse of social media and spread of fake news in the Rajya Sabha and the Minister had conveyed to the house on 26/07/2018, the resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law. He had conveyed this after repeated demands from the Members of the Parliament to take corrective measures.
- The Ad-hoc committee of the Rajya Sabha laid its report on 03/02/2020 after studying the alarming issue of pornography on social media and its effect on children and society as a whole and recommended for enabling identification of the first originator of such contents.
Under the new rules, to encourage the growth of new social media intermediaries without subjecting smaller platforms to significant compliance requirements, the rules make a distinction between social media intermediaries and significant social media intermediaries. This distinction is based on the number of users on the social media platform. The Government will notify the threshold of a user base that will distinguish social media intermediaries and significant social media intermediaries.It will make the government agencies, courts, private individuals, and the companies know, what falls under what category while resolving the issues. Beforehand, there was high ambiguity in terms of finding the solution to certain social issues. However now, categorizing the same will make issues resolved more easily.
The key features of the new guidelines may be read as under:-
- Due Diligence by Intermediaries:
The new Guidelines/Rules make it mandatory for an intermediary including Social Media Intermediaries and Significant Social Media Intermediaries to observe the following due diligence while discharging its duties.
- Grievance Redressal Mechanism:
Now it is mandatory to establish a grievance redressal mechanism for resolving the complaints from the users. For this a Grievance Officer shall be appointed and he is obliged to acknowledge the complaint from the users within 24 hours. Further he will resolve it within 15 days from the day of its receipt.
- Protecting the dignity of the users:
An intermediary shall remove or disable the access to the information within 24 hours of the receipt of the complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or sexual activity, or is in nature of impersonification included morphed images. In no case, the time taken to disable the access to the information shall be more than thirty-six hours from the receipt of the court’s order.The intermediaries while removing the information, shall also preserve the information and associated records for 180 days for diligent investigation. They shall secure its practices as prescribed in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011.
It will give the victims (especially girls) more sense of security from the content not being circulated at large. Disabling access to the information will help the crimes to spread less. Also, it will make the purpose of an investigation run more smoothly.
- Physical presence:
The Chief Compliance Officer who will be appointed for ensuring compliance with the laws shall be a resident in India i.e. A Nodal Contact Person for 24×7 coordination with law enforcement agencies. He shall perform the functions mentioned under Grievance Redressal Mechanism. All three positions must be based in India. Significant social media intermediary shall also have a physical contact address in India published on its website or mobile app or both. It is also mandatory for the Intermediaries 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 by the significant social media intermediary.
Earlier, many times the social media intermediaries referred to the laws of their origin countries to escape from certain liability towards the security of people. By ensuring that Grievance Redressal Mechanism will include the officers resident of India, it will be easy to keep a proper check-in favour of social issues in India., as it is very evident that the social issues in other countries could be very different from India. To add on, the monthly compliance report will help in proper adequate scrutinization of the laws.
- Source of mischievous content:
Significant social media intermediaries providing services primarily like messaging shall enable identification of the first originator of the information that is required only for prevention, detection, investigation, prosecution, or punishment of an offense 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 offense 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.
A step towards the safeguarding of sovereignty and integrity of India. Enabling the identification of the first originator will help in finding the actual cause behind a wrong act. E.g. any post over social networking site against the sovereignty of India would spread over in seconds and it was impossible to be detected the source behind it before these provisions were introduced.
- Hearing users against whom complaint is made:
In cases where significant social media intermediaries remove 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.
This feature will ensure that fair means of justice is done by the court by giving adequate chance of being heard for the act done by the accused.
- Online curated content:
The new rules have also focused on the kind of online content circulated over the internet. A published is restricted from publishing or exhibiting any content which is prohibited under any law or court of competent jurisdiction. A publisher needs to take care of certain aspects while transmitting any content in respect of sovereignty and integrity of India, content that threatens or endangers the security of the State. No content can be published which disturbs the Maintenance of public order. They need to execute due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group. Also, the regulations introduced the classifications of the content i.e. which is suitable for children as well as people of all ages. For e.g. online content which is suitable for a person, aged 16 shall only be shown under parental guidance. The content shall also be classified based on themes and messaged violence, nudity, sex, language, drug and substance abuse, and horror. Further any other additions on classifications can be made from time to time by the Ministry of Information and Broadcasting.
Online curated content provisions are going to help in maintaining peace over the digital world through the prohibitions on certain content and classifications mentioned. During the last years with the rise of the digital world lack of check on the content lead to many serious offenses, due to an impact on the human minds, especially of children. A small piece of content can have a huge impact on the human mind. There was a very high need to keep a control and balance between our right to expression and not exploiting this right into any explicit act of violence or any act hazardous in nature.
Remarks: It has been inferred that self-regulation of social media intermediaries was a long pending demand of the industry. The sustainable rise in content on digital media which means everything is available for public viewing without any restrictions had turned out to be global challenge. The system in India is now ready for wide ramifications under the rules. A clear direction to the publishers of online content will help in diminishing any apprehensions. The grievance redressal mechanism has also made it simpler and efficient system for maintaining and tracking the complaints. This will be aided with ease filing complaint along with an appeal mechanism in place when grievances resolved unsatisfactory. The rules also made it very clear in the minds of complainants as to which authority to approach due to the distinction made.
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