With a meteoric rise of digital platforms in India, citizens have been blessed with the boons of modern technology. Unfortunately, some disturbing developments have also taken place with the rampant spread of fake news and pornographic content on social media, and sexually explicit content on OTT platforms.
To address the growing concerns surrounding lack of digital transparency and accountability, the government recently came out with a code of ethics for digital intermediaries under the Information Technology Rules, 2021 (‘Rules’).
The Rules come at a time when the government and Facebook owned company Whatsapp have been at loggerheads on where to draw the line between data protection & transparency. On a previous request of the government, Whatsapp refused to share the point of origin of fake messages on its platform, citing privacy concerns.
Overtime, filmmakers, civil societies and parents have also voiced their concerns about the nature of content published on digital platforms, requesting governmental intervention.
Another wide-spread issue has been the circulation of unlawful pornographic content on digital platforms, threatening the dignity of women and children involved. Due to a lack of legal transparency, the government was unable to hold originators of such unlawful content accountable.
The above being some of the many gray areas surrounding digital transparency, the government felt the need to strengthen its legal technological framework, thereby notifying the Rules.
Applicability of the Rules
The Rules are primarily designed for social media intermediaries and digital OTT platforms. Wondering what these are? OTT platforms stands for Over The Top streaming services provided by the likes of Netflix, Hotstar and Amazon. While intermediaries are social media platforms like Facebook, Twitter and YouTube, for instance.
Blanket Rules for Social Media Intermediaries
To enable growth of new social media intermediaries without subjecting them to heavy compliance requirements, the Rules make a distinction between social media intermediaries (‘SMIs’) and significant social media intermediaries (‘SSMIs’) on the basis of number of users on the social media platforms. For example, Facebook, Whatsapp and Instagram will qualify as SSMIs, given they are major social media platforms with millions of users. For such SSMIs, the Rules require additional due diligence to be followed, considering the platforms’ wide-ranging reach and effect.
Under the Rules, all social media intermediaries, including SMIs and SSMIs should not host or publish any information which threatens the sovereignty and integrity of India, public order, friendly relations with foreign countries, or is content that is pornographic or paedophilic, etc.
To ensure the online safety and dignity of users,all intermediaries shall appoint a Grievance Officer who shall remove or disable access to content within 24 hours of receiving a complaint, if the content exposes the private areas of an individual, shows sexual acts or contains sexually morphed images, etc.
SMIs and SMMIs are also to assist the government in investigative activities within 72 hours of receiving a court order for verification of identity, or in relation to any offences or for cyber security incidents.
Higher Due Diligence for SMMIs
Given the far-ranging impact and prevalent misuse of SSMIs like Facebook, Twitter and Instagram, the Rules require these platforms to be highly accountable for their actions and meet additional compliance requirements.
If mandated by a government order, SSMIs providing messaging services (e.g.: Whatsapp) would now have to enable identification of individuals who first started circulating unlawful content like spreading fake news, posting morphed sexual images, etc.
Such government order shall be passed in relation to offences harming the sovereignty and integrity of India, the security of the State, friendly relations with foreign State or offences related to rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years.
In addition to the above, SSMIs are also to appoint certain personnel such as Chief Compliance Officer, 24×7 Nodal Contact Person and Resident Grievance Officer to ensure compliance with the Rules. SSMIs would have to publish a monthly compliance report mentioning complaints received, relevant actions taken, and unlawful content removed proactively.
OTT to have its own Watchdog
Considering repeated requests for regulating digital content, the law-makers felt the need to have a soft-oversight mechanism in place. The Rules have thus introduced a three-tier regulatory framework for addressing complaints relating to content streamed online. At level one is self-regulation by OTT/news publishers (‘Entities’), level two includes regulation of Entities by an independent self-regulatory body and level three is an oversight mechanism by the central government.
From When Will The Rules Take Effect?
For SMIs, the Rules shall be applicable with immediate effect. For SSMIs, OTTs and digital news publishers who need to undertake additional compliance, the Rules shall be effective within 3 months of the date of notification, i.e. 25th February, 2021.
Our Thoughts
The well-intended Rules can be appreciated for attempting to curb fake news, misuse of social media and self-regulation by OTT platforms. However it is also a double edged sword, as combating abusive content would mean breaking end-to-end encryption which might impact privacy and digital democracy netizens have long enjoyed.
Given that we Indians are already heavily suffering from privacy related issues, it is high time that we educate ourselves about the new Rules on our right to privacy and freedom of creative expression.
