The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ('2021 Rules')1were released by the Central Government in February 2021. The 2021 Rules are framed further to the exercise of powers by the Government of India under Section 87(2) of the Information Technology Act, 2000. The 2021 Rules have now been amended vide Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. ('2023 Amendment').
The 2021 Rules supersede the previously framed Information Technology (Intermediary Guidelines) Rules 2011.
The 2021 Rules were introduced to update the regulatory framework in order to empower the ordinary users of social media and place obligations on Social Media Intermediaries ('SMIs') and Significant Social Media Intermediaries ('SSMI') for a safe and trusted online environment. The 2023 Amendment has now placed significant obligations also on the 'online gaming intermediaries'. This article seeks to understand the impact of the 2023 Amendment and the key additions made therein.
Key Features of the 2021 rules
- Due Diligence
Rule 3(1) of The 2021 Rules casts certain obligations on the SMIs and SSMIs with respect to online content.
'SMIs' are defined as 'intermediarywhich 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'. 'SSMIs' are defined as a'social media intermediary having a number of registered users in India above such threshold as notified by the Central Government.'
The expression 'intermediaries' has been defined under Section 2 (w) of the Information Technology Act, 2000 to mean; 'one with respect to any electronic record, on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.'
Rule 3(1) of the 2021 Rules requires both the SMIs and SSMIs;
- To not host, store or publish any unlawful information upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government.
- To share cybersecurity-related information with Indian Computer Emergency Response Team (CERT) in accordance with the policies and procedures as mentioned in the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013
Additional obligations have been cast on SSMIs under Rule 4. SSMIs are required to appoint certain personnel for compliance, enable identification of the first originator of the information on its platform under certain conditions, and deploy technology-based measures on a best-effort basis to identify certain types of content.
- Grievance Redressal Mechanism
Rule 3(2) of the 2021 Rules provides for a grievance redressal mechanism to be adopted by SMIs and SSMIs.
A Grievance Officer must be appointed whose contact details should be permanently published on the website or application. Any complaint made by the user must be acknowledged within 24 hours, and it must be addressed and disposed of within 15 days of receipt. [Rule 3(2)(a)]
The intermediary should take all reasonable measures to remove illicit content within 24 hours of receiving a complaint in relation to such content if it is prima facie any material that exposes a private area, shows full or partial nudity, or depicts any sexual act or conduct or is like impersonation in any electronic form. [Rule 3(2)(b)]
- Code of Ethics for Digital Media Publishers
The 2021 Rules provide for a code of morals to be observed by distributors of digital media, including:
- news and current undertakings, content suppliers, and
- online curated content publisher2
News and current undertakings continue to be bound by the existing domain-specific codes stated as under:
(i) standards of editorial directly formed by the Press Council of India,
(ii) program code under the Cable Television Networks Regulation Act, 1995.
Online curated content publishers are required to observe the following:
(i) grouping content in age-suitable classes as indicated,
(ii) carrying out an age check system for admittance to grown-up content and access control estimates like parental controls, and
(iii) further developing openness of content for handicapped people.
Typically, online curated content publishers are Over-The-Top (OTT) platforms, i.e., platforms using technology that delivers streamed content over the internet.
In July 2013, the Organisation for Economic Co-operation and Development (OECD) Communications Outlook (2013) described OTT services as "video, voice and other services provided over the Internet rather than solely over the provider's own managed network".
The 2023 Amendment
The key modifications introduced by the 2023 Amendment are discussed below:
- Fact Check Unit ('FCU')
The 2023 Amendment requires the SMIs, SSMIs (such as Twitter, Facebook, etc.) and Online Gaming Intermediary (discussed below) to inform their users through internal rules, regulations and other policies, to not 'host, display, upload, modify, publish, transmit, store, update or share any information which is 'identified as fake or false or misleading by a fact check unit of the Central Government' in respect ofany business of the Central Government.
The Ministry of Electronics and Information Technology ('MeitY') is empowered to notify the fact check unit of the central government to identify fake, false, or misleading information about any central government business.
The provisions related to fact-checking were notified in the draft amendments in mid-January of 2023, wherein the Press Information Bureau was proposed as the fact-checking body. This issue is yet to be decided.
In cases where information has been flagged as false or misleading, intermediaries are expected to take down the content. The FCU can instruct intermediaries (including social media sites) not to host such content. The intermediaries must take down the content to retain their safe harbour provisions as provided under Section 79 of the Information Technology Act, 2000, which protects an intermediary from being held liable for third-party content on its platform - provided that the intermediary observed 'due diligence' as prescribed by the Central Government.
2. Inclusion of 'Online Gaming Intermediaries'
The 2023 Amendment classifies a provider of online games as an 'intermediary' under the IT Act, 2000, creating a different category called 'Online Gaming Intermediary'.
Online game has been defined as a 'game that is offered on the Internet and is accessible by a user through a computer resource or an intermediary'.
Online Gaming Intermediary ('OGI') has been defined under Rule 2(1)(qb) as "any intermediary that enables the users of its computer resource to access one or more online games".
In addition to the compliance requirements already applicable to intermediaries under Rule 3, the 2023 Amendment imposes additional compliance requirements, particularly on OGIs who provide access to Permissible Online Real Money games which means 'an online real money game which a self-regulatory body ('SRB') has verified' as per Rule 2(1)(qf). The SRB is an entity designated by MeitY to verify an online real money game as a permissible online real money game under these rules. Before any online real money game can be offered, it has to be verified by SRB.
The following applies to OGIs providing real money games:
- Such OGI should not offer financing on its own or through a third party to users for playing games on their platform [Rule 4(13)].
- Such OGI must display a demonstrable and visible registration mark on all online real money games confirming that such games are permissible online real money games verified by a SRB. [Rule 4(10)]
- Such OGI must have a physical contact address in India. [Rule 4(5)]
- Such OGI must meet the Know Your Customer (KYC) requirement as per RBI norms and verify the user's identity before accepting deposits from them as laid down under Rule 4(12).
- Such OGI must appoint a Resident Grievance Officer, a Chief Compliance Officer, and a nodal person to reside in India to ensure constant coordination with law enforcement agencies. [Rule 4(1)(c)]
FCU and The Freedom of Speech Debate
The proposed introduction of the FCU has raised concerns among internet freedom activists.
The FCU may be viewed as a mechanism to safeguard against the potential cascading effect on account of the dissemination or sharing or the possibility of dissemination of misleading information in respect of any business of the Central Government via SMIs, SSMIs and OGIs.
The ambit of 'any business of the Central Government' is a question which may be debatable. It will be relevant to understand if the 'right to freedom of speech and expression' granted to all citizens of India under The Constitution of India allows the freedom to share information in the public domain which potentially may be misleading in respect of any business of the Central Government.
It will be useful to note that Article 19 of the Constitution of India, which enshrines the freedom of speech and expression with respect to citizens, also provides that the State may make a law to impose reasonable restrictions on the exercise of such right in the interest of sovereignty and integrity of India, security of the State, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
It would seem the scope of 'any business of the Central Government' to which the FCU applies is a distinct issue from the foregoing areas in respect of which 'reasonable restrictions' may be imposed in accordance with the law.
Aside from the question of whether or not a formal mechanism is required to prevent the dissemination, sharing or potential dissemination of fake or false or misleading information in respect of any business of the Central Government, certain aspects require deliberation.
The users of SMIs, SSMIs, and OGIs are restricted fromhosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing any informationwhich is identified as fake or false, or misleading by a fact check unit of the Central Government in respect of any business of the Central Government.
- It is not clear as to how 'storing' of any information, even if fake, may be identified as such - unless there is a mechanism for 'search'.
- Certain expressions, particularly in the absence of a definition, may allow room for subjective interpretation. For example, the meaning of 'fake' and 'false' - where the dictionary meanings are at variance.
Collins: to cause something not genuine to appear real or more
valuable by fraud.
[available at: https://www.collinsdictionary.com/dictionary/english-thesaurus/fakelast accessed on August 10, 2023]
Cambridge: an object that is made to look real or valuable in
order to deceive people.
[available at: https://dictionary.cambridge.org/dictionary/english/fake-newslast accessed on August 10, 2023]
Websters: to alter, manipulate, or treat so as to give a
spuriously genuine appearance to
[available at: https://www.merriam-webster.com/dictionary/fake#:~:text=%3A%20not%20true%2C%20real%2C%20or%20genuine%20%3A%20counterfeit%2C%20sham last accessed on August 10, 2023]
Collins: not in accordance with the truth or facts
[available at: https://www.collinsdictionary.com/dictionary/english/false#:~:text=(f%C9%94%CB%90ls%20),incorrect%2C%20untrue%2C%20or%20mistaken last accessed on August 10, 2023]
Cambridge: not real, but made to look or seem real
[available at: https://dictionary.cambridge.org/dictionary/english/false last accessed on August 10, 2023]
Webster: not genuine
[available at: https://www.merriam-webster.com/dictionary/false last accessed August 10, 2023]
- The expression 'in respect of any business of the Central Government bears a wide connotation, thereby broadening the scope of the restriction.
- It would be important to distinguish an 'opinion' or 'view' or 'analysis' from 'information'.
1 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified on 25 February 2021 available at:https://mib.gov.in/sites/default/files/IT%28Intermediary%20Guidelines%20and%20Digital%20Media%20Ethics%20Code%29%20Rules%2C%202021%20English.pdf
2 Rule 8, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021
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