The Amendments to the It Rules, 2021

What’s in today’s article:

• Background (Definition of Intermediaries, How new IT Rules came up)
• IT Rules, 2021 (Major modifications introduced through IT Rules for Intermediaries)
• Amendments to IT Rules, 2021

In News:

• The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on October 28.

Background:

• Intermediaries are entities that store or transmit data on behalf of other persons, and include telecom and internet service providers, online marketplaces, search engines, and social media sites.
• The Information Technology Act, 2000 was amended in 2008 to provide an exemption to intermediaries from liability for any third-party information.
• Following this, the IT (Intermediary Guidelines) Rules, 2011 were framed under the IT Act to specify the due diligence requirements for intermediaries to claim such exemption.
• Later on, Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were notified in February, 2021, to replace the 2011 Rules.

IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:

• The rules were notified by the MeitY in February, 2021.
• The Rules provide the due diligence to be followed by an intermediary (including social media intermediary) while discharging its duties, Grievance Redressal Mechanism and Digital Media Code of Ethics.
• Due Diligence to be followed by Intermediary –
  • Prominently publish on its website (or mobile based application or both), the rules and regulations, privacy policy and user agreement for access or usage of its computer resource by any person;
  • The rules have modified the categories of content that users are not allowed to upload or share.
  • Periodically (at least once in a year) inform its users of its rules and regulations, privacy policy or user agreement or any change in the rules and regulations, privacy policy or user agreement.
• Grievance Redressal Mechanism of Intermediary –
  • The intermediary must ensure to prominently publish on its website/mobile based application, the name of the Grievance Officer and his contact details.
  • It must provide a mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it.
  • Grievance Officer shall acknowledge the complaint within 24 hours and resolve it within fifteen days from its receipt.
• Additional Due Diligence for Significant Social Media Intermediary –
  • Intermediaries with registered users above a notified threshold will be classified as significant social media intermediaries (SSMIs).
  • SSMI shall appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act.
  • SSMI shall appoint a nodal contact person for 24×7 coordination with law enforcement agencies and officers.
• Identifying the first Originator of Information –
  • An SSMI which primarily provides messaging services (for example WhatsApp), must enable the identification of the first originator of information within India on its platform.
• Ensuring Online Safety and Dignity of Users –
  • Intermediaries shall remove or disable access within 24 hours of receipt of complaints of contents that exposes the private areas of individuals, show such individuals in full or partial nudity or in sexual act or is in the nature of impersonation including morphed images etc.
  • Such a complaint can be filed either by the individual or by any other person on his/her behalf.
• Oversight Mechanism –
  • Ministry of Information and Broadcasting shall formulate an oversight mechanism.
  • It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances.

Need for amendments to the IT Rules, 2021:

• First, there was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms.
• Second, to further strengthen the grievance redressal framework in the Rules.
• Third, compliance with IT Rules should not impact early-stage start-ups.

Amendments to the IT Rules, 2021:

• The amendments have put additional obligations on the Social Media Intermediaries (SMI) to ensure better protection of user interests.
  • The original IT Rules, 2021 obligated the SMIs to merely inform its users of the “rules and regulations, privacy policy and user agreement” that governed its platforms.
  • This obligation on the SMIs has now been extended to ensuring that its users are in compliance with the relevant rules of the platform.
  • Further, SMIs are required to “make reasonable” efforts to prevent prohibited content being hosted on its platform by the users.
  • To a large extent, this enhances the responsibility and concomitantly the power of SMIs to police and moderate content on their platforms.
• SMIs are also now obligated to “respect all the rights accorded to the citizens under the Constitution, including in the Articles 14, 19 and 21”.
  • Given the importance of SMIs in public discourse and the implications of their actions on the fundamental rights of citizens, the horizontal application of fundamental rights is appreciable.
• SMIs are now obligated to remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises.
  • They have to remove such information within 72 hours of the complaint being made.
  • Given the virality with which content spreads, this is an important step to contain the spread of the content.
• Lastly, “rules and regulations, privacy policy and user agreement” of the platform should be made available in all languages listed in the eighth schedule of the Constitution.

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