Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media), 2021 (“IT rules,2021 “) were recently the subject of judicial review when digital media platforms questioned the constitutional validity of specific provisions regarding the prescribed” Code of Ethics “and called it an attempt to restrict the freedom of speech and expression (see our article here)1. The IT Rules 2021 were formulated after years of discussion and debate, and were primarily formulated to monitor social media and digital media platforms and to hold social media users accountable by establishing a three-tier redress mechanism for effective grievance resolution (see our previous article here)2. The Ministry of Electronics and Information Technology (“MEITE“) on November 1, 2021 published a collection of frequently asked questions (“Faq“) and provided relevant clarifications to the 2021 IT rules. These FAQs attempt to clarify and interpret the 2021 IT rules, in particular the compliance to be followed by intermediaries. The FAQs are limited to the IT Rules Part II. The 2021 Rules will be administered by MEITY. Key clarifications, among others, include:
Improving the safety of women and children: In response to question 5 of the FAQ on how IT rules improve the safety of women and children, MEITY clarifies that the IT rules of 2021 have a clear objective of improving the online safety of users, in particular women and children, and refers to various provisions of the IT Rules which among othersdemand an improved intermediary grievance mechanism and demand the cooperation of intermediaries with law enforcement agencies to identify the first perpetrator of information relating to rape, sexually explicit material or sexual abuse material. ‘children for investigation and prosecution.
Right to privacy of individuals: In response to question 6 of the FAQ regarding the impact of IT rules on the right to privacy of individuals, the FAQ clarifies that the 2021 IT rules are compatible with the fundamental right to privacy and clearly emphasize on protecting the online privacy of individuals. The 2021 IT rules also prescribe guarantees with regard to the identification of the first sender of messages and guarantee that the privacy of users is not violated during these identification operations.
Right to freedom of expression and expression: In response to question 7 of the FAQ concerning the negative impact of the IT rules of 2021 on the right to freedom of expression and expression, MEITY clarifies that the IT rules do not affect the right to freedom of expression and expression guaranteed by article 19 of the Constitution. A strong grievance mechanism has been put in place to ensure that users whose content or access is unreasonably removed can report such an error to the intermediary for corrective action.
Qualify as an “Intermediate”: On the question of knowing which entity will be qualified as “intermediary”, the answers to questions 11 and 12 of the FAQ explain that with the evolution of technologies and therefore the proliferation of digital companies and services, many other platforms from different types can be described as intermediaries. with respect to third party content made available, shared, hosted, stored or transmitted on their platforms, including websites and mobile applications. In addition, it is clarified that in order to be considered a “social media intermediary”, it is imperative that the possibility of online interactions be the primary or sole objective of the “intermediary” and of an entity that has another main purpose, and only incidentally allows online interactions, cannot be considered a “social media intermediary”.
Important Social Media Intermediaries:The answer to question 13 of the FAQ specifies that, in accordance with the notification in the Gazette3, a “social media intermediary” with fifty lakh or five million registered users in India will be considered a “significant social media intermediary” (“SSMI“).
Appointment of the nodal officer: In response to question 18 of the FAQ, it is clarified that the compliance officer and the nodal contact cannot be the same person, whereas the roles of the nodal contact and the grievance officer resident can be exercised by the same person. However, MEITY suggests that it is desirable for SSMI to appoint separate people for the two roles taking into account the functional requirements of the nodal contact person and the resident grievance officer.
“Reasonable” explanations for user complaints: The answer to question 21 of the FAQ details the requirement of an intermediary, to the extent reasonable, to provide the complainant with the reason for any action taken or not taken and the criteria on what would qualify as “reasonable”. The FAQ specifies that users should be made to understand the methodology used by the intermediary’s resident grievance officer to deal with the complaint and that the intermediary should provide a reasonable explanation to the user. It is further stipulated that in case of a frivolous complaint, the nature of the complaint can be invoked as the reason why no action is taken as the idea is to promote accountability while giving flexibility.
End-to-end encryption tradeoffs: In response to question 24 on whether detecting the first sender of the message on messaging platforms would compromise encryption, the FAQ clarifies that the intent of the rule is not to break or weaken encryption in any way, but just getting the details of the recording. from the first Indian author of the post. The electronic replica of the message (text, photo or video, etc.) will be shared by the requesting organization accompanied by a legal order.
Non-compliance with 2021 IT rules:The answers to questions 27 and 28 of the FAQ describe the impact of non-compliance with the 2021 IT rules and the potential penalties for users breaking the rules. In the event of non-compliance with the IT rules of 2021, the intermediary will lose its exemptions from liability in accordance with Article 79 of the Information Technology Law of 2000 and rule 7 of the IT rules may become applicable in this regard. which concerns the law in force. violated. It is also clarified that although there are no penalties provided for users under the IT rules of 2021, users must ensure that the content they share on intermediary platforms does not violate the rules. other relevant existing laws.
By posting these FAQs, the government through MEITY has taken steps to demystify the subjective interpretation and ambiguity surrounding these highly controversial 2021 IT rules. As indicated in the paragraphs above, the FAQs aim to clarify important questions related to the impact of the IT Rules, 2021 including on fundamental rights guaranteed by the Constitution. An attempt has been made to strike a delicate balance between the obligations of intermediaries and the rights of users. Recent controversies over the interpretation and application of IT rules (followed by various High Court judgments) have not helped positively promote IT rules and FAQs strive to provide guidance to users, agencies media and intermediaries with respect to the provisions of Part II of the IT Regulations, 2021.
1 https://www.mondaq.com/india/media-entertainment-law/1118278/code-of-ethics-under-the-information-technology-rules-2021-stay-orders-by-the-high-courts -de-bombay-et-madras
2 https://www.mondaq.com/india/social-media/1063198/the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-impact-on-digital-media –
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