The government on Thursday notified the Information Technology (Intermediary Guidelines and Digital media Ethics Code) Rules 2021.
The new set of rules finalised by the Ministry of Electronics and Information Technology (MeitY) and Ministry of Information and Broadcasting (MIB) seek to regulate social media platforms as intermediaries and digital media and over-the-top (OTT) streaming platforms in the country.
Social Media Intermediary
Among other things, the rules classify social media intermediaries into significant social media intermediaries based on the number of users and others, with the former being subject to additional due diligence. The threshold number for being a significant social media intermediary will be notified by the government.
All significant intermediaries will be required to appoint a chief compliance officer, nodal contact person and grievance officer, all located in India. The significant intermediaries will also be required to publish a monthly compliance report mentioning details of complaints received and action taken.
The statement also requires intermediaries to disable access, within 24 hours, to content exposing private areas of individuals, indicating full or partial nudity or sexual act or morphed images based on complaints filed by individuals or someone else on their behalf.
The current guidelines also require traceability of messaging or chat platforms stating, “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.”
The statement further added, “Intermediary shall not be required to disclose the contents of any message or any other information to the first originator.”
This will also mean breaking encryption on chat platforms such as Facebook owned WhatsApp, which according to the release has 530 million users in India. According to the press release, Facebook had 410 million, Instagram had 210 million, Youtube had 448 million and Twitter 17.5 million users in India.
Significant social media intermediaries will also be required to use technology-based measures to proactively identify unlawful content and will be required to mark marketing or advertising material as such clearly.
“The cornerstone of our digital freedoms is ‘safe harbour’. Thus, making it conditional to the requirement of automated proactive monitoring and censoring illegal content as mandated under the new rules might lead to privacy challenges, and could also lead to censorship by intermediaries,” said Kazim Rizvi, founder of policy think-tank, The Dialogue.
The draft guidelines for internet intermediaries were published by MeitY in December 2018, following which it received 171 comments and 80 counter-comments, said a release issued by the government.
Recently, MeitY had also issued a notice to microblogging site Twitter for restoring access to certain accounts flagged by the government as a threat to sovereignty of the country.
The OTT Guidelines specified by the MIB prescribe a three-level self-regulatory mechanism decided by the publishers on the first level, regulation through self-regulating bodies on the second level and an oversight mechanism to be designed by the MIB at the third level.
The oversight mechanism will include establishing an inter-departmental committee for hearing grievances and appointing an authorised officer by the ministry for issuing directions to delete, modify or block content for public access for a specified time period after approval from the ministry.
Recently industry body Internet and Mobile Association of India had issued a tool-kit for self regulation of OTT players with 17 signatories in the space.