New IT Rules 2021

Information Safety
Recently, the government has notified Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules 2021.

These new rules broadly deal with social media and over-the-top (OTT) platforms.
These rules have been framed in exercise of powers under section 87 (2) of the
Information Technology (IT) Act, 2000 and in supersession of the earlier Information
Technology (Intermediary Guidelines) Rules 2011.

Background:
2018:
The Supreme Court (SC) had observed that the Government of India may
frame necessary guidelines to eliminate child pornography, rape and
gangrape imageries, videos and sites in content hosting platforms and other
applications.
2020:
An Ad-hoc committee of the Rajya Sabha laid its report 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.
The government brought video streaming over-the-top (OTT) platforms
under the ambit of the Ministry of Information and Broadcasting.

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New Guidelines for Social Media/Intermediaries:
Categories of Social Media Intermediaries:
Based on the number of users, on the social media platform intermediaries
have been divided in two groups:
Social media intermediaries.
Significant social media intermediaries.
Due Diligence to be Followed by Intermediaries:
In case, due diligence is not followed by the intermediary, safe harbour
provisions will not apply to them.
The safe harbour provisions have been defined under Section 79 of the IT
Act, and protect social media intermediaries by giving them immunity from
legal prosecution for any content posted on their platforms.
Grievance Redressal Mechanism is Mandatory:
Intermediaries shall appoint a Grievance Officer to deal with complaints
and share the name and contact details of such officers.
Grievance Officer shall acknowledge the complaint within twenty four
hours and resolve it within fifteen days from its receipt.
Ensuring Online Safety and Dignity of Users:
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.
Such a complaint can be filed either by the individual or by any other
person on his/her behalf.
Additional Due Diligence for the Significant Social Media Intermediaries:
Appointments: Need to appoint Chief Compliance Officer, a Nodal
Contact Person and a Resident Grievance Officer, all of whom should be
resident in India.
Compliance Report: 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.
Enabling Identity of the Originator:
Significant social media intermediaries providing services primarily in
the nature of messaging shall enable identification of the first
originator of the information.
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.
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 Removal of Unlawful Information:
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.
Rules for News Publishers and OTT Platforms and Digital Media:
For OTT:
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).
Parental Lock:
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”.
Display Rating:
Shall prominently display the classification rating specific to each
content or programme 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 programme
enabling the user to make an informed decision, prior to watching the
programme.
For Publishers of News on Digital Media :
They 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.
Grievance Redressal Mechanism:
A 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 SC, a High Court or
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 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 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.

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 The Information Technology (IT)
Rules, 2021
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
were released by the Ministry of Electronics and Information Technology (MeitY) in February. Social
Media intermediaries were given a three-month period to comply with the new rules. 1 The
government on May 26 issued fresh notice to all social media intermediaries seeking details on the
status of compliance with the new rules that came into effect on that day.
Companies like Google, Facebook, WhatsApp, Telegram, Koo, Sharechat, and LinkedIn have shared
details with MeitY as per the requirement of the new norms. Twitter sought an extension of the
compliance window and called for a constructive dialogue and a collaborative approach from the
government to safeguard freedom of expression of the public. WhatsApp also filed a case in the Delhi
High Court against the government on grounds that the new rules violated customer privacy. The
new Intermediary Guidelines and Digital Media Ethics Code have also been challenged by entities
like The Wire, LiveLaw and The Quint.
The IT Rules 2021 aim to empower ordinary users of social media platforms and OTT platforms with
a mechanism for redressal and timely resolution of their grievance with the help of a Grievance
Redressal Officer (GRO) who should be a resident in India. Special emphasis has been given on the
protection of women and children from sexual offences, fake news and other misuse of the social
media.
Identification of the “first originator of the information” would be required in case of an offence
related to sovereignty and integrity of India. A Chief Compliance Officer, a resident of India, also
needs to be appointed and that person shall be responsible for ensuring compliance with the Act and
Rules. A monthly compliance report mentioning the details of complaints received and action taken
on the complaints would be necessary.
The OTT platforms, online news and digital media entities, on the other hand, would need to follow
a Code of Ethics. OTT platforms would be called as ‘publishers of online curated content’ under the
new rules. They would have to self-classify the content into five categories based on age and use
parental locks for age above 13 or higher. They also need to include age verification mechanisms for
content classified as ‘Adult’.
A three-level grievance redressal mechanism has been mandated. This includes the appointment of a
GRO, self-regulatory bodies registered with the Ministry of Information & Broadcasting (MIB) to
look after the Code of Ethics and a Charter for the self-regulating bodies formulated by MIB.
While the new rules were challenged by many on grounds of violation of free speech, the government
has clarified that these rules permit social media platforms to operate in India f reely but with due
accordance to the law. Every entity has to abide by the Constitution of the country and the Rule of
Law. Also, as per Article 19 of the Constitution, freedom of speech and expression is not absolute
and is subject to reasonable restrictions, especially in case of a threat to national sovereignty and
security.

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 Misuse of Social Media
The rules come at a time when the country is constantly striving to ensure the safety and sovereignty
of the cyberspace and of personal data. Social media is increasingly becoming an important part of
an individual’s life. WhatsApp currently has a user base of 340 million in the country, accounting
for the largest number of subscribers in the world.2 Facebook has 290 million, Twitter 17 million,
YouTube 265 million and Instagram, 120 million user base.
With such a huge population dependent on social media platforms, the tech-giants cannot choose to
ignore the new and emerging challenges like persistent spread of fake news, rampant abuse of the
platforms to share morphed images of women, deep fakes and other contents that threaten the dignity
of women and pose a threat to security.
Instances of use of abusive language, defamatory contents and hate speech in these platforms have
become very common. The algorithms used by these platforms to optimize views and advertisements
often fail to distinguish between relevant or useful content and abusive content and fake news,
thereby amplifying them in very little or no time.
In view of such emerging challenges, the Supreme Court in 2018, in the Tehseen S. Poonawalla v/s
Union of India case, directed the government to curb and stop dissemination of explosive messages
and videos on various social media platforms which have a tendency to incite mob violence and
lynching of any kind.3 The Court in 2017 observed that the government may frame necessary
guidelines to eliminate child pornography, rape and gang rape imageries, videos and sites in content
hosting platforms and other applications.4
The new rules are thus in accordance with the previous Supreme Court observations. As per the rules,
intermediaries are mandated to remove or disable contents that are against the safety and dignity of
individuals within 24 hours of receiving of complaints. Such complaints can be filed either by the
individual or a person on his/her behalf. According to the government, knowing the “first originator
of information” (also known as “traceability”) of messages that cause violence, riots, terrorism, rape
or threat to national security fall under reasonable exceptions to Right to Privacy - which again is not
absolute as per the Constitution.

Technological Hurdles with Respect to

Traceability
Social media companies like WhatsApp have expressed apprehensions about the provisions in the
new rules which require them to identify traceability when required to do so by authorities. They
contend that this could possibly lead to the breaking the of end-to-end encryption, which in turn can
compromise users’ privacy.
The government, on the other hand, has stated that traceability would only be required in case of
“very serious offences” that threaten the sovereignty and integrity of India. Further, it could also be
implemented without breaking the end-to-end encryption. The onus, however, will lie on the
companies to find a technological solution for the same.
Supplying metadata like phone number of the sender, the time of sending a message, the device it
was sent from and its location, could also trace the origin of a message. Interestingly, WhatsApp’s
new privacy policy itself has a provision of sharing metadata of its users with its parent company,
Facebook, for personalised ads.7 As per latest reports, the Union government has sent a notice to
WhatsApp for withdrawal of its new privacy policy which has caused a lot of controversy since its
inception.

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 The Free Speech Debate
The social media giant, Twitter, has raised concerns regarding free speech over the new IT guidelines.
It stated that it would strive to comply with the law but if guided by principles of transparency and
freedom of expression under the rule of law. The Delhi High Court on May 31 issued a notice to the
microblogging site on a plea filed against it for alleged non-compliance with the new IT rules.9
Failure to comply with the rules could lead to the removal of ‘intermediary’ status (a safe harbour to
avoid liability for the content that their users publish) of the companies and could poss ibly invite
sanction or even punishment under the law. The government insists that the rules are neither arbitrary
nor sudden, since the draft rules were put up for public comments and several individuals, industrial
associations and organizations had responded. The comments were then analysed in detail and an
inter-ministerial meeting was also held before finalising them.

The Way Forward

Freedom of speech and expression is the basic tenet of any democracy. However, no freedom is
absolute or completely unrestricted. The imperative of striking the right balance between fundamental
rights and ascertaining the reasonableness of a restriction has been a constant effort since the adoption
of the Constitution. The debate has now reached the digital world. The on-going tussle between
private, tech giants who own a substantial amount of Big Data, governments desirous of imposing
reasonable restrictions and users worried about issues relating to data privacy and constraints on
freedom of speech and expression, is likely to get more complicated before optimum solutions can
be arrived at. The IT Rules 2021 seek to address concerns of the citizens without infringing on their
privacy and personal liberties, while maintaining digital sovereignty at the same time.

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