Information Technology Rules, 2021: Regulation Vs. Freedom Of Expression

Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.

Key Features

• Due Diligence to be followed by Intermediaries: The Rules prescribe due diligence that must be followed by intermediaries, including social media intermediaries. In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
• Significant Social Media Intermediaries: Social media intermediaries, with registered users in India above a notified threshold, have been classified as significant social media intermediaries (SSMIs). SSMIs are required to observe certain additional due diligence such as appointing certain personnel for compliance, enabling identification of the first originator of the information on its platform under certain conditions, and deploying technology-based measures on a best-effort basis to identify certain types of content.
• Code of Ethics: For publishers of news and current affairs, the following existing codes will apply:
  • norms of journalistic conduct formulated by the Press Council of India, and
  • programme code under the Cable Television Networks Regulation Act, 1995.
  • For online publishers of curated content, the Rules prescribe the code of ethics.
• Grievance Redressal Mechanism: A three-level grievance redressal mechanism has been established under the rules with different levels of self-regulation.
  • Level-I: Self-regulation by the Publishers: Publisher shall appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.
  • Level-II: Self-regulation by the Self-regulating Bodies of the Publishers: Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not be been resolved by the publisher within 15 days.
  • Level-III: 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

Regulation v/s Freedom of Expression

There are growing concerns around misuse of the online platforms for the proliferation of illegal or harmful content such as child sex abuse material, content provoking terrorism, misinformation, hate speech, and voter manipulation.Lack of regulation, unrestrained subjective interpretation of socio-cultural rights, absence of time-bound grievance redressal mechanism and no clear set of accountabilities for digital media, intermediaries and OTT platforms, have further complicated the issue. Thus, regulation of intermediaries becomes necessary.

• However the Rules do not give a person clarity on what is restricted and may create a ‘chilling effect’ on their freedom of speech and expression.
• The Rules specify certain additional restrictions on the types of information users of intermediary platforms can create, upload, or share such as
  • “harmful to child”,
  • “insulting on the basis of gender”,
  • “knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact”.

Some of these restrictions are subjective and overbroad, and may adversely affect the freedom of speech and expression of users of intermediary platforms. This may also lead to over- compliance from intermediaries as their exemption from liability is contingent upon observing due diligence.

• The new rule stipulates that OTT and digital-news outfits must register details of their company and accounts with the government, sparking concerns about press freedom.Thus, the provisions of the rule will affect the artistic freedom involved in creating content for OTT platforms, irreparably.
• The Rules require intermediaries to provide information under their control or possession upon request by a government agency. However, these rules do not restrict the extent or type of information that may be sought. Such powers without adequate safeguards may adversely affect the privacy of individuals.

Possibilities and Prospects

The social media will continue to play a central role in public protests and violent incidents might occur in the future too and in that case the government will have to act towards shutting down access to certain URLs under the law of the land. Therefore, given the increasing use of social media, OTT and intermediary platforms to spread fake news, to stir social unrest and violence, to promote pornography, etc., the government’s notification of the rule seems a valid step. But that process has to always remain transparent, proportional and impartial.