India has geared up to regulate social media, OTT and other news/current affairs content platform, thereby making them accountable for the online content shared by them. The Ministry of Electronics and Information Technology (“MeitY”) has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Guidelines”) on 25th February 2021 under the Information Technology Act, 2000 (“IT Act”). The Guidelines have been brought into effect to regulate Intermediaries (as defined under the IT Act), including social media, OTT platforms in India etc. These Guidelines supersede Information technology (Intermediary Guidelines) Rules, 2011.
The key features of the Guidelines are as follows:
Purpose: These Guidelines have introduced obligations, due diligence, grievance mechanism and code of ethics to be followed by the intermediaries.
Applicability: The Guidelines are applicable on Intermediary, SMI, Significant SMIs and Publishers.
Distinguishing social media platforms on the number of users: The Guidelines define “Social Media Intermediary” or “SMI” as intermediaries which 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. In case the registered users in India of a Social Media Intermediary are more than the threshold limit notified by the central government, then such Social Media Intermediary will be deemed as a Significant Social Media Intermediary (“Significant SMI”).
Due Diligence by an intermediary: An intermediary, including a SMI and Significant SMI shall observe the below obligations:
(b) The Website Rules shall direct its users to not host, display, upload, modify, publish etc. any information which amongst other things is defamatory, harmful to a child, infringes any IP rights, violates any law in force, misleads, impersonates another person, threatens the unity or sovereignty of India.
(c) Upon receiving a court order or after being notified by the appropriate government the Intermediary shall not host, store, publish any unlawful information. The Intermediary shall remove or disable access to such information no later than 36 (Thirty-Six) hours.
(d) In case, the Intermediary is collecting information from a user for registration, it shall retain its information for a period of 6 months after cancellation or withdrawal of the user’s registration.
Grievance Redressal Mechanism: The Intermediary shall publish on its websites, mobile application or both, the name of the respective grievance officer, his contact details, and the redressal mechanism.
(a) Such grievance officer shall acknowledge the complaint within 24 hours and dispose off the complaint within 15 days. It shall receive and acknowledge any order, notice or director from the appropriate government or court.
(b) The Intermediary shall remove all contents which contains sexual act, nudity etc. upon the receipt of a complaint made by such individual or any person on its behalf.
Additional due diligence to be followed by Significant SMI: In addition to the above due diligence, a Significant SMI shall within 3 months from the date of notification of the threshold observe the following:
(a) Appoint a Chief Compliance Officer (“CCO”) who shall be responsible for ensuring compliance with the Act and all the rules thereunder. Appoint a nodal contact person for coordination with law enforcement agencies.
(b) In case such Significant SMI is providing messaging services, it shall enable the identification of the first originator (in India) of the information if required by judicial order or by the competent authority.
(c) MeitY may by order require an SMI to follow all the additional obligations of a Significant SMI.
The intermediary shall inform the publishers of news and current affairs to provide the details of their user accounts with such Intermediary to MeitY.
Code of Ethics and Safeguards for Digital Media (“Code of Ethics”): The following rules shall be administered by the Ministry of Information and Broadcasting (“MIB”) and will be applicable on publishers of news, current affairs, and online curated content operating in India (“Publisher”):
(a) There shall be a three-tier structure to ensure observance and adherence to the Code of Ethics by the Publisher, and for addressing the grievances made by complainants.
(b) Tier 1: The Publisher is to establish a grievance redressal mechanism and appoint a grievance redressal officer based in India.
(c) Online curated content is to be classified into the categories referred under the Guidelines, having regard to the context, theme, tone, impact and target audience of such content and rating of such content is also to be displayed in a manner that ensures that such users are aware of this information before accessing such content.
(d) Tier 2: One or more independent self-regulatory bodies of Publisher (“SROs”) is to be set up, constituted by such Publishers or their association. The SRO shall be headed by a retired judge of the Supreme Court or High Court or an eminent person. Among other things, the SRO shall oversee and ensure the adherence of the Code of Ethics, address grievances of complainants.
(e) Tier 3: An oversight mechanism is to be developed by the MIB in coordination with the Publishers and the SROs. MIB shall also constitute an inter-departmental committee for the hearing of the grievances in respect of decisions taken in Tier 1 or Tier 2.
(f) Publishers of news and current affairs content operating in the Indian territory are to mandatorily furnish details to MIB.
(g) A Publisher and SRO is to make true and full disclosure of all grievances received by it.
the manner in which the grievances are disposed of, the action taken on the grievance etc.
With this move, India joins nations across the world looking to regulate social media platforms and others. The Guidelines are going to bring change to the mushrooming social media platforms in India. These Guidelines may be seen as an offshoot of the recent internal issues faced by India, however, they have been made to regulate wider concerns. The classification of Significant SMI on the basis of a number of followers will protect the smaller SMIs from undue compliances. Further, the notification of the Code of Ethics and SRO should act as a medium between the Government and SMEs.
The SMIs would be required to bring necessary compliances along with appointing officials. The registration of SMIs which are in news or current affairs publication would require additional registration with the Ministry of Information and Broadcasting, however, the implication of the same on foreign-based SMIs would be interesting to watch!