The primary purpose of this study is to learn about Rule 6 of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. 

Introduction

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hence “Rules, 2021”) were published on February 25, 2021, by the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting. The Intermediary Guidelines have replaced the 2011 Information Technology (Intermediaries Guidelines) Rules.

One of the provisions is the “traceability or the originator” provision, among several other contentious provisions. Substantial social media intermediates, a new class formed under the 2021 Rules, are required to track the first originator of a message.

This clause would apply to firms such as Facebook, Signal, WhatsApp, Telegram, and Instagram. Furthermore, intermediaries with a user base of less than 50 lakh users would be required to comply with Rule 4 or any of its rules under Rule 6.

What are intermediaries?

Intermediaries are companies that provide services that allow online material to be delivered to the end-user. Internet service providers, search engines, DNS providers, social media platforms, and cyber cafes are all examples of this.

“Intermediary” with respect to any particular electronic record means any person who receives, stores, or transmits that record on behalf of another person, and includes Telecom service providers, network service providers, internet service providers, web-hosting providers, search engines, online payment sites, online-auction sites, and other similar entities, according to the IT Rules 2021.

Who is a ‘significant social media intermediary’?

Significant social media intermediaries are a new type of intermediary created by the IT Rules.

A ‘significant social media intermediary,’ as defined by S. 2(1)(v) of the IT Rules 2021, is “a social media intermediary with a number of registered users in India exceeding such threshold as notified by the Central Government.”

The Central Government announced that a social media intermediary must have more than 50 lakh subscribers to be designated as a substantial social media intermediary.

As a result, tech behemoths such as Facebook, Twitter, WhatsApp, Signal, and Instagram, among others, will be considered important social media intermediaries.

What are the obligations mentioned under Rule 6 for the intermediaries?

Under Rule 6 of the Act, the ministry may by order with reasons recorded in writing require a not-so-significant social media intermediary to comply with the obligations mentioned under Rule 4.

Furthermore, the purpose for which such an order can be issued has been defined as offenses relating to the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, or public order, or incitement to an offense relating to the above or in relation to rape, sexually explicit material, or child sexual abuse material, or incitement to an offense relating to the above or in relation to rape, sexually explicit material, or child sexual abuse material.

Why does the ministry want so?

The ministry only wants this in case the services of such a minor intermediary allow information to be published or transmitted in a way that poses a material danger of harm to India’s sovereignty and integrity, security, friendly relations with foreign nations, or public order.

What should be the nature of services provided y the not-so-significant intermediary?

The services will be assessed for a material risk if they allow:

1. Interaction between users.
2. If such a posting and transmission of information reaches a large number of other users, it will result in widespread distribution of that information.

What is the authority of Rule 6?

Under Rule 6 of the IT Rules, an order may be made in connection to a specific part of the computer resource of any website, mobile-based application, or both, as the case may be if such specific component is in the nature of an intermediary.

An entity may be obliged to comply with all or any of the responsibilities listed under rule 4 in relation to a specified part of its computer resource that is in the nature of the intermediary if such an order is issued.

Additional Obligations for Significant Social Media Intermediaries  under Rule 4  

On the plus side, the Procedures oblige major social media intermediaries to provide transparency and due process rules for content takedowns. Companies must notify users, explain why it was removed, and provide an appeals process when users’ content is removed.

Rule 4(2) of the Information Technology (Procedure and Safeguards for the interception, monitoring, and decryption of information) Rules, 2009 mandates a significant social media intermediary’ providing services primarily in the nature of messaging to enable identification of the first originator of the information on a computer source, as required by a judicial order or order passed under S. 69 of the Information Technology Act, 2000.

The 2021 Rules, on the other hand under rule 4, require:

• Providers to appoint an Indian resident “Chief Compliance Officer,” who will be personally liable in any proceedings relating to non-compliance with the rules, as well as
• a “Resident Grievance Officer,” who will be responsible for responding to user complaints as well as government and court orders.
• Companies must also nominate a local employee to function as a point of contact for law enforcement collaboration.

Intermediaries may find it harder to oppose or fight unjust and unreasonable government directives as more CEOs relocate to India, where they may risk punishment.

How to control social media?

India’s lockdown and corona phases served as a defining moment for the country, revealing the stark truth of its dependency on social media networks. The discussions clearly show that people’s dependency on social media is quite dangerous, as there is a considerable risk of it being abused at this time.

In recent years, there has been an increase in the use of social media to harass women and invade people’s privacy.

Subhranshu Rout v. State of Odisha, 2020 SCC Ori 878 & Selvi J. Jayalalithaa vs. Penguin Books India C.S. No. 326 of 2011) & Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.

In such cases, the victim’s powerlessness was exacerbated by the lack of a solid complaint process. There was a need for a distinct requirement that limited those who abused or misused social media. Regular social media users and OTT (over-the-top) platforms could register their complaints and resolve their issues within a set timeframe.

It was also observed that, while social media platforms are designed to act as intermediaries, they frequently act as publishers or editors of material.

Facebook – Intermediary or Editor?, The Center for Communication Governance Blog, National Law University, Delhi

Additional Due Diligence by Intermediaries

Rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, discusses the additional due diligence that intermediaries must follow.

1. Display of Privacy Policy and Personal Data Use: Rule 3 requires the intermediary to disclose the privacy policy and the use of personal data or information for its users on his website or application. Furthermore, the user should be prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing any information that is illegal, unethical, defamatory to the general public, or misleading to the general public, according to the privacy policy or user agreement. This precise prohibition would apply to any item that jeopardizes a person’s dignity.
2. Information under the state’s unity, integrity, and sovereignty : According to the legislation, any information relevant to the state’s unity, integrity, or sovereignty shall not be considered. In addition, intermediaries must tell users that if unethical material is shared, their account will be canceled, and any information that violates the user agreement or privacy policy will be erased.
3. Removal of Unethical Information: If it is brought to the intermediary’s attention that any information provided on its portals is unethical, as mentioned above, the intermediary shall act quickly to remove the information, as required by Section 79(3) of the Information Technology Rules, 2000.
4. Specify the details of the Grievance Redressal Mechanism: The intermediary must publish the name of the Grievance Officer and his/her contact information, as well as the mechanism by which a user or a victim may make a complaint about a violation of Rule 4 or other matters relating to the computer resources made available by it, on its website or application, or both, as the case may be. Furthermore, the Grievance Officer must acknowledge the complaint within three working days of receiving it and resolve it within one month of receiving it.
5. First Originator of Information: One of the most important aspects of the stated Rules is identifying the “First Originator of Information” as may be required by a Court or Competent Authority order under Section 69 of the Information Technology Act, 2000.

However, the issue at hand is the uncharted possibility of the same, given that many intermediates (particularly WhatsApp) claim that the information they share is encrypted end-to-end.

The case of Facebook Inc v. Union of India is now being decided on this issue. The case was initially brought for adjudication at the Madras High Court. As a result, tech giants such as Facebook and YouTube have been identified as defendants in the case. Because the case was still pending in various High Courts, including the Bombay High Court and the Madhya Pradesh High Court, Facebook turned to the Supreme Court for help. Facebook/WhatsApp argued that it utilizes end-to-end encryption, which makes it difficult to track a message’s source, and that even WhatsApp doesn’t have decryption keys, so it doesn’t have access to the communications.

The Supreme Court is now hearing arguments on how intermediaries might track down the originators of messages uploaded on their platforms.

Encryption and Traceability Requirements

For some years, the Indian government has fought messaging software providers – most notably WhatsApp – demanding “traceability” of the originators of forwarded communications.

The demand arose in the aftermath of a series of mob lynchings in India, which were sparked by misinformation that spread over WhatsApp.

https://economictimes.indiatimes.com

Following that, Indian courts received petitions requesting that social networking accounts be linked to users’ biometric identity numbers. Despite the court’s rejection of the request, expert opinions provided by a member of the Prime Minister’s scientific advisory group offered technical measures to enable end-to-end encrypted platform tracking. Some messaging systems don’t learn or preserve the history of who first wrote specific content that was subsequently forwarded by others due to privacy and security features, a situation that the Indian government and others have found distasteful.

In response to a court order or a decryption request issued under the 2009 Decryption Rules, the 2021 Rules require private messaging intermediates to “allow the identity of the first author of the material.” Suppose the initial sender of a message is located outside of India’s borders. In that case, the private messaging app will be forced to locate the first sender of that information within the country.

These court orders are subject to a number of restrictions under the 2021 Rules, including the fact that they can only be issued for serious offenses. On the other hand, limitations will not alleviate the proposal’s underlying problem: a technological mandate for corporations to reengineer or re-design messaging services to comply with the government’s demand to identify the message’s author.

The ‘Voluntary User Verification’ is an integral element established in the IT Rules, 2021.

Rule 5 of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

Users who voluntarily choose to verify their accounts will be given a suitable mechanism for doing so and a tangible and visible mark of verification. However, there is a heated debate about whether the entire user authentication procedure should be voluntary.

Amit Chaturvedi, 3-stair mechanism for OTT platforms, monthly compliance reports: Big points from govt guidelines on social media, Hindustan Times

In addition, any information submitted by a user that violates the IT Rules, 2021 must be withdrawn. On the other hand, the user must be given a reasonable opportunity to be heard.

Conclusion 

The Intermediary Guidelines have replaced the 2011 Information Technology (Intermediaries Guidelines) Rules. Rule 2021’s strict rules encourage over-removal of content; mandating intermediaries to use automated filters will certainly result in more takedowns. The Central Government announced that a social media intermediary must have more than 50 lakh subscribers. Information under the state’s unity, integrity, and sovereignty will not be considered per the specified law. Information that casts a person in a negative light and obscene conduct should be removed. The intermediary must also keep the specified information for an investigating period of one hundred and eighty days. The Indian government has fought messaging software providers – most notably WhatsApp – demanding “traceability” of the originators of forwarded communications. The demand arose in the aftermath of a series of mob lynchings, sparked by misinformation spread over WhatsApp. Tech giants such as Facebook and YouTube have been identified as defendants in the case.

References

1. Information Technology Act, 2000
2. https://sflc.in/-
3. https://internetfreedom.in/
4. Facebook – Intermediary or Editor? The Center for Communication Governance Blog, National Law University, Delhi
5. Subhranshu Rout v. the State of Odisha
6. Selvi J. Jayalalithaa vs. Penguin Books India
7. Justice K.S. Puttaswamy v. Union of India
8. https://www.firstpost.com/
9. https://economictimes.indiatimes.com
10. Hindustan Times

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