by Pritesh Raj 22 April 2021
In response to growing concerns regarding lack of accountability and inadequate right of social media users in India, the Government of India on 25th February 2021 announced “the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These rules are meant to regulate Social Media Intermediaries like Whatsapp, Instagram, and Facebook.
Today, the total number of Indian users of social media platforms runs into hundreds of millions, with a whooping user base of 410 million for Facebook and 530 million for Whatsapp. While these platforms provide impetus to India’s expeditious transition into the digital era, they also pose numerous threats to the nation’s security. In recent times these platforms have been used for mischievous purposes to disturb the serenity and peace around the nation by using it as a medium to dispense fake and provocative messages. It is now an ordinary spectacle to see dubiously morphed images of individuals or antecedent activities running rampant through these intermediaries with little or no check on their reliability and potential effect. Furthermore, the evident lack of a robust redressal mechanism added fuel to the already burning pyre. The present Rules are meant to curb the menace of such messages that are detrimental to the nation’s tranquillity.
These Rules are intended to have a twofold effect. While on the one hand, it will act as an arm of government to regulate such Intermediaries and Digital Media sources. On the other hand, it will provide the necessary tool to apprehend the source of menace and thwart any other possible concern to tranquillity. Default in complying with these rules can potentially lead to withdrawal of benefits under safe harbour provision.
Under the provision of the Rules, Social Media Intermediaries are required to adopt a grievance redressal mechanism. They need to appoint a grievance officer who shall take cognizance of complaints against any content on their platform within 24 hours and resolve the same within 15 days at the latest.
There is a possibility that the stringent provisions present in the IT Rules 2021 can be detrimental to the growth of novice platforms with meagre resources to abide by these instructions. To reduce the burden on such platforms, the Rule divides these Intermediaries into two categories based on their user base. The Union Government has been empowered under the Rule to determine the demarcation line between “Significant Social Media Intermediaries” and “Social Media Intermediaries.” The Social Media Intermediaries that are not considered to have significant influence by the government will not be required to follow additional due diligence like the appointment of Chief Compliance Officer, Nodal Contact Person and Resident Grievance Officer, and publication of Monthly Compliance Report.
The most significant provision of the IT Rules, 2021 is disclosing the first originator’s identity under Rule 5(2). This provision is aimed to curb the spread of fake messages through platforms like WhatsApp and Facebook Messenger. It is a common trend that if a message is found appealing to its reader, it is shared amongst the individual’s numerous contact, ultimately resulting in its widespread distribution. At times these messages are provocative in nature or can cast undue aspersions on someone’s character. To date, it has been difficult to pinpoint the origin of such messages. Still, now the Social Media Intermediary will be required to keep track of the origin of messages shared on their platform.
As per Government notification, the identity of the first originator is required only for prevention or detection of an offence related to the integrity of India, the Nation’s Security, friendly relations with foreign states, or public order or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment of not less than five years. To safeguard the privacy of the First Originator, the Rules stipulate that the Social Media Intermediary is not required to divulge other messages of his or identity of any other recipient of his message to the government.
Interestingly, the IT Rules, 2021 incorporate within itself “Code of Ethics and Procedure and Safeguards about Digital/Online Media.” The Code will apply to all forms of Digital News, Media, and OTT’s. This is an added provision meant to bring accountability to Digital Media because of their potential to spread the news through the Internet. While this is a welcome step, it is still ambiguous as to the reason why there needed to be an additional law to regulate digital media when there are already abundant laws to regulate them.
The IT Rules 2021 are indeed a colossal step toward bringing accountability to the table. Still, it is yet to be seen how beneficial it will be toward bringing accountability in the realm of Social Media or detrimental as a means to curb freedom of speech and expression enshrined in Article 19 of the Indian Constitution.