Effects Of Non-Compliance With The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)

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The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 were released by the Ministry of Electronics and Information Technology in February 2021.
India Media, Telecoms, IT, Entertainment
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The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 were released by the Ministry of Electronics and Information Technology in February 2021. Social Media intermediaries were given a three-month period to comply with the new rules. The government on May 26, 2021, 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 the Ministry of Electronics and Information Technology 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 grievances 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.

INTERNET INTERMEDIARIES AND PROTECTION AFFORDED TO THEM UNDER LAW

Internet intermediaries are entities which perform various functions including facilitation of exchange of information and online communication. For example, Facebook or Twitter are internet intermediaries. A user registered on Facebook can share information with his connections without the same being edited by Facebook in any manner. This passive role adopted by Facebook is what in essence enables it to be classified as an intermediary.

Under Section 79 of the Information Technology Act, 2000, intermediaries are granted protection from incurring any liability for third-party data available on their platform or hosted by them. This protection is essential as various intermediaries such as Facebook, Twitter or YouTube do not monitor the content posted by third-party users on their platforms.

Also, if any such content uploaded by a third-party user is in violation of any law, the intermediary does not incur any liability for such information.

Section 79, which is recognized as a safe harbour provision, enables intermediaries to function freely without having any such obligation to monitor the content before it is uploaded. However, the protection offered to intermediaries under Section 79 is conditional. One of the conditions prescribed under Section 79 is that an intermediary is required to observe due diligence while discharging its duties and observe guidelines made by the Central Government in this regard.

INFORMATION TECHNOLOGY (INTERMEDIARIES GUIDELINES) RULES, 2011

Prior to the current 2021 rules, the 2011 Rules laid down the standards of due diligence required to be observed by intermediaries. The 2011 Rules required intermediaries to publish rules and regulations, privacy policy and user agreements which would enjoin each user not to post information which would contravene any law in force. These rules also required intermediaries to disable access or remove information which is unlawful upon receiving actual knowledge of the same.

The Supreme Court in Shreya Singhal vs Union of India1 read down the requirement of actual knowledge of an intermediary to mean knowledge of a court order directing it to disable access or remove such information.

INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021

The 2021 Rules supersede the 2011 Rules. In these rules, the requirement of publication of rules and regulations, privacy policy and user agreements which stipulate that no user shall post information which would contravene any law in force has been retained. The Supreme Court's decision in Shreya Singhal vs Union of India on the point of actual knowledge has now been embodied in the rules.

The 2021 Rules also permit the intermediaries to take down any unlawful information on a voluntary basis and such voluntary removal would not affect the protection afforded to them under Section 79 of the Information Technology Act.

In addition to these general requirements, the 2021 Rules lay down additional due diligence requirements to be observed by "significant social media intermediaries".

Any intermediary who primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services and has more than 50 lakh registered users is classified as a significant social media intermediary. Thus, all popular social networking platforms such as Whatsapp, Facebook, Instagram and Twitter would be required to observe these additional due diligence requirements.

These intermediaries were given a three-month timeline for ensuring compliance of the new rules. Each significant social media intermediary is required to establish a grievance redressal mechanism and appoint three officers, viz., a Chief Compliance Officer who shall be responsible for compliance of the Information Technology Act and the rules framed there under, a Nodal Contact Person who shall be responsible for communication with law enforcement agencies and a Resident Grievance Officer who shall be responsible for the grievance redressal mechanism.

All these officers are required to be residents of India. Another obligation cast upon these intermediaries is to enable identification of the 'first originator' of any information on its platform. An order directing an intermediary to identify the first originator can only be passed for prevention, detecting, investigating or prosecuting any offence relating to the sovereignty or integrity of India, its security and relations with other countries, public order and in relation to information depicting rape or sexually explicit material or child sexual abuse material.

It is reported that Whatsapp, which provides end-toend encrypted messaging services, has approached the Delhi High Court challenging this particular provision on the ground that it violates the right to privacy guaranteed under the Indian Constitution.

WHAT HAPPENS IF THE INTERMEDIARIES DO NOT COMPLY?

Under Rule 7 of the 2021 Rules, if an intermediary fails to observe any of the rules laid down, it loses protection afforded to it by Section 79 of the Information Technology Act. Simply put, this would mean that an intermediary like Facebook or Twitter would be open for liability if a third-party user posts unlawful content on their platforms.

If publication of such information amounts to an offence, the intermediaries hosting such information would also be punishable under the relevant law in the absence of the protection afforded under Section 79. Thus, non-compliance of the 2021 Rules would expose the intermediaries to significant liability.

It is unlikely that they would be banned from operating in India for such non-compliance. It may, however, render their operations non-viable as they may then be required to proactively monitor information uploaded on their respective platform so as to avoid incurring liability.

Footnote

1. AIR 2015 SC 1523

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Effects Of Non-Compliance With The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)

India Media, Telecoms, IT, Entertainment
Contributor
S&A Law Offices is a full-service law firm comprising experienced, well-recognized and accomplished professionals. S&A Law Offices aims to provide its clients (both domestic and international) with top-quality counsel and legal insights, which combines the Firm's innovative approach with comprehensive expertise across industries and a broad spectrum of modalities. Being a full-service law firm, we take pride in having the capability of providing impeccable legal solutions across various practice areas and industries and makes an endeavor to provide a 360 degree legal solution. With registered office at Gurugram and other strategically located offices in New Delhi, Mumbai, and Bengaluru, along with associate offices across India, S&A is fully equipped to provide legal services on a pan-India basis.
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