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Commercial perspectives on the Intermediary Rules, 2021

On 25 February 2021, the Ministry of Electronics and Information Technology in consultation with the Ministry of Information and Broadcasting (MIB) introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (rules). These replaced the Information Technology (Intermediaries Guidelines) Rules, 2011.

The rules introduce three classes of entities, namely intermediaries, which are defined in section 2(w) of the Information Technology Act, 2000; social media intermediaries, which are entities that enable online interaction between two or more users and are defined under rule 2(w), and significant social media intermediaries, which have a minimum number of registered users as notified by the government under rule 2(w). On 26 February 2021 the government specified five million registered users as the minimum number for a social media intermediary to be considered as a significant social media intermediary.

Every intermediary will now have to publish their rules and regulations, privacy policies and user agreements relating to access to, or usage of their computer resources by any person. They also have to inform such users that they are not to host, display, upload, modify, publish, transmit, store or share any information that belongs to any other person, or in a broad sense threatens the unity, integrity, defence, security or sovereignty of India.

The intermediary will have to remove or disable access to such information as early as possible, but no later than 36 hours from the receipt of a court order or on being notified by the appropriate government department or agency. On receipt of such orders, intermediaries will have to hand over information under its control within 72 hours.

The rules also set out a grievance redress mechanism under which the intermediary is required to publish the name of the grievance officer along with their contact details. The grievance officer must deal with complaints within 15 days.

The rules require that intermediaries providing messaging service must enable the identification of the originator as set out in an order made by a court of competent jurisdiction.

The rules set out a Code of Ethics (code) in relation to digital media publishers of news and current affairs and online curated content, operating in India, or systematically creating their contents to be available in India. The rules set out a three tier regulatory framework. Level I is self-regulation by the publisher through a grievance officer who receives complaints relating to the code.

Level II acts through the creation of self regulating bodies of publishers, headed by retired judges of the Supreme Court, high court judges or independent eminent persons registered with the MIB to deal with grievances that the publisher fails to resolve within 15 days and to hear appeals from such complainants. These bodies will issue guidelines or advice to publishers to ensure compliance with the code.

Level III is a government oversight mechanism. The MIB will constitute an inter-departmental committee to hear complaints regarding contraventions of the code as well as grievances arising from decisions taken at levels I and II. The committee may issue directions to publishers or issue recommendations to the MIB for the removal of such content. The MIB has the power to act on such recommendations.

The spread of social media has given them the power to make or break the personal or business reputation and goodwill of a person or company, often irreversibly. Social media have become vehicles for the dissemination of fake information. These challenges to governance and administration were the major issues which led the Supreme Court to call upon the government to introduce a framework to tame what it regarded as an out of control sector. The rules aim to introduce a “harmonious, soft-touch oversight mechanism in relation to social media platforms as well as digital media and OTT platforms”. The rules encourage greater transparency and a stronger accountability of intermediaries, while bringing about norm-setting in the digital and social media space. They are expected to have a significant impact and will play an important role in keeping strict checks and balances on the contents which are published and released on social media platforms.

This article was originally published by Indian Business Law Journal:

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