This article discusses due diligence to be observed by the intermediaries, furnishing of information by the publishers about their users to the Ministry, and responsibilities of the OTT platforms.
An Introduction
The Information Technology Rules, 2021, were released by the Ministry of Electronics and Information Technology in February 2021. An intermediary or a publisher of news and current affairs content was given a time period of three months to conform to the same. Due-diligence in the IT Rules 2021 discusses the various aspects of due diligence that the intermediaries and publishers of news and current affairs content are required to obey. These rules are introduced when our nation is constantly looking for ways to ensure the safety of personal data and privacy. It is not surprising that social media is becoming an imperative part of our day-to-day lives. It would be almost impossible to think of a person’s life without social media.
WhatsApp, Instagram, Facebook, Twitter, and Snapchat are some of the many social media giants in the market. WhatsApp has a towering user base of 390 million in India (the largest number of subscribers in the world). Facebook has a user base of 290 million, YouTube 225 million, and Instagram 180 million users. With such a large number of people dependent on social media platforms; bigger problems come into being that social media giants cannot overlook. In some cases, rampant sharing of morphed pictures of women and children has also been seen. Still, the algorithm of these social media giants often fails to recognize the difference between a normal picture and a morphed one, leading to more exploitation of the algorithm.
In view of these challenges, in the case of Tehseen S. Poonawalla vs. Union of India in 2018, the Supreme Court directed the government to curb and cease dissemination of explosive messages and videos on various social media platforms which tend to instigate mob violence.
Tehseen S. Poonawalla vs Union of India, (2018) Writ Petition (Civil) No. 754 of 2016.
Additional Due-diligence pertaining to an intermediary concerning news and current affairs content
Before we go any further, let us first discuss what digital media and online curated content mean and, for the purpose of these rules, who these intermediaries are, and what is meant by news and current affairs content.
According to IT Rules 2021, Part 1, Section 2(i), ‘digital media’ means any kind of digitized content or information that can be transmitted over the internet like images, files, articles, etc., which include content received, stored, and transmitted to publisher pertaining to news and current affairs content.
Section 2(m) defines “news and current affairs content,” which is newly received or noteworthy content pertaining to recent events primarily in terms of socio-political, economic, or cultural nature made available to the ordinary users over the internet or any social or digital media platform.
Section 2 (t) defines “publisher of news and current affairs content,” which means an online paper or news portal or news agency and other such entity functionally similar to publishers of news and current affairs content but shall not include newspapers.
The new guidelines and rules as per the IT Rules 2021 mention additional due-diligence to be followed by the publishers, which are as follows:
The intermediaries are required to provide the users with privacy policies, rules, and regulations for using the services of the respective intermediary or publisher.
IT Rules, 2021, Rule 3, Sub-rule (1) (a)
The policy and rules and regulations must inform the users that they should refrain from doing anything that would violate the terms and conditions, rules, and regulations. Such violations may include defamatory content, hate speech, fake news, modifying the data, spreading false news, and uploading illegal content like morphed images of children and women.
IT Rules, 2021, Rule 3, Sub-rule (1) (b) (ii).
Upon the order of a court, the intermediary is required to block the access to illegal information by the users within 36 hours. The new rules state that intermediary must block the access to such illegal information within the time period discussed above.
The publishers of news and current affairs content shall not publish anything which is against the sovereignty, security, unity, and integrity of the nation. Any content that provokes people to use violent means, mob lynching, or has hate speech, or contains anything that would diminish the government’s image in the opinion of the public is supposed to be not published in the first place.
IT Rules, 2021, Rule 3, Sub-rule (1) (b) (viii).
The intermediaries shall take appropriate steps to block access to the content of any nature, which is violative of the terms and conditions discussed above within 24 hours. Suppose the content is found to be sexual or non-consensual, or abusive in nature, its access to the ordinary users shall be blocked by an intermediary within the time period mentioned above.
IT Rules, 2021, Rule 3, Sub-rule (2) (b).
Identification of the first originator of the message or information. The rampant spread of fake news and illegal images of children and women is becoming very common these days. In order to tackle this problem, the new rules state that the intermediaries are supposed to trace and identify the first originator of any such sort of message or content.
IT Rules, 2021, Rule 4, Sub-rule (2).
In addition to adherence to rules 3 and 4, an intermediary shall publish a clear and concise statement on its website, mobile-based application, or both, informing publishers of news and current affairs content along with the common terms of service for all ordinary users. Such publishers are required to furnish the details of their user accounts to the Ministry as may be required under rule 18 (Furnishing of Information), provided that an intermediary is required to provide such publishers by whom the information is provided under rule 18 of the IT Rules with a demonstrable and visible mark of verification as being publishers, which is supposed to be conspicuously visible to all the ordinary users of the service.
Now, we shall look at how the publishers are required to furnish information to the Ministry. Part 5, Rule 18, Subrules (1), (2), (3), and (4) of the IT Rules, 2021 state that:
- A publisher of news and current affairs content operating in the territory of India shall inform the Ministry about the details of its entity by furnishing information along with the required documents to enable communication and coordination.
- The publisher of news and current affairs content and the publisher of online curated content shall publish periodic compliance reports every month mentioning the details of grievances received and action taken thereon and;
- The Ministry may call the intermediary or publisher for such additional information or documents as it may consider the same necessary for implementing this rule.
Conclusion
To extrapolate, the Ministry of Electronics and Information Technology has indeed come up with an essential and much-needed solution to tackle the problems like spreading of fake news, data fabrication, data falsification, rampant abuse and exploitation of digital and social media platforms to share adult and morphed pictures of women, and in some cases, children too. These problems have come into existence with the increased usage of social and digital media platforms.
Therefore, the intermediaries and publishers of news and current affairs content have a pivotal role to play here in order to prevent the aforementioned problems from rampantly spreading even more, and thus, our government introduced these new rules in February 2021, which are known as IT Rules 2021.
The new guidelines clearly state aspects of due diligence to be observed by the intermediaries, the responsibilities of the OTT platforms and the publisher of news and current affairs content, and furnishing information about their users to the Ministry. The guidelines and rules are to be strictly followed by intermediaries and publishers of news and current affairs content in adherence to rule 5 and 18 of the IT Rules.
The new rules will significantly reduce the discussed problems and challenges and make digital and social media platforms much safer.
References
- Number of WhatsApp Users in India, FORBES (Aug. 27. 2021, 05:16 PM), https://www.forbesindia.com/article/news-by-numbers/indians-most-active-on-whatsapp-with-3901-million-monthly-active-users-in-2020/70059/1
- Number of Instagram Users in India, STATISTA, (Sept. 7. 2021), https://www.statista.com/statistics/578364/countries-with-most-instagram-users/
- Number of Facebook Users in India, STATISTA, (Sept. 10. 2021), https://www.statista.com/statistics/268136/top-15-countries-based-on-number-of-facebook-users/
- Number of YouTube Users in India, GLOBAL MEDIA INSIGHT, (Oct. 4. 2021, 02:13 AM), https://www.globalmediainsight.com/blog/youtube-users-statistics/
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