By Ragini Ghosh and Deepika Shrivastav
The Government of India (through the Ministry of Electronics and Information Technology), recently came out with the revised Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 delineating new (stricter) rules to be followed by social-media platforms/intermediaries and over-the-top (OTT) platforms.
The rules were notified in an attempt to curtail spread of hate speech, fake news, misinformation etc. which, owing to the ‘easy-sharing’ characteristic of social-media, proliferates in little to no time and may threaten national security or create social unrest. Further, the new rules also contemplate removal/disabling of content that is against the safety and dignity of individuals.
While critics have challenged some of the aspects of the new rules for being unconstitutional and against the very tenets of democracy and free speech, the Government has maintained that the new rules are not attempted to curb free speech and democracy in any manner and is only an attempt to safeguard the rights of Indian citizens by holding social-media platforms and other intermediaries, most of which are foreign companies, accountable for the content hosted thereon.
Apart from the concerns surrounding the legality of some of the aspects of the new IT Rules, 2021, the new rules were found to be deficient in providing clarity on certain essential aspects affecting social-media takedowns, namely, the procedure of filing the takedowns, the name and nature of enforcement agencies allowed to request takedowns, amongst others.
To address the growing discontentment between social-media platforms and other affected agencies, the Government is in the process of outlining Standard Operating Procedures (SOPs) on content takedown which are intended to act as clarifying Guidelines to the new IT Rules, 2021 and are expected to address the various issues surrounding content/information takedown.
Social-media platforms and other content-hosting intermediaries have been extremely vocal in expressing their apprehensions surrounding the new IT Rules, in specific, the stringent takedown timelines, which eliminate the possibility of appeals or a fair recourse.
Some of the key issues associated with the IT Rules, 2021 are:
- Procedural issues: Lack of a formal procedure to send takedown requests;
- Issuing Authority: Lack of clarity with regard to the enforcement agencies entitled to issue takedown notices as well as the Agency responsible for filing takedowns;
- Procedures to be followed to obtain information and assistance from an intermediary;
- Obstruction of Free speech: The rules are seen to be in contravention of the constitutional right to free speech;
- Traceability: Social-media platforms have so far been immune to the ramifications of the nature of messages exchanged between users privately owing to end-to-end encryption. However, the new mandatory requirement of traceability is believed to not only expose the platforms but also invade privacy of users and deprive them of a safe and private medium of communication and information exchange;
- Fair recourse: The new IT Rules direct the intermediaries to take down content within a time-frame of 36 hours from the time of request and failure in compliance may attract criminal penalties against key company executives. This stringent timeline is perceived to be extremely restrictive and designed to deny any possibility of fair-recourse.
According to the Economic Times, the social media and tech industry has requested the government to create a single touch-point i.e. establish a central portal or a common email address through which official requests for content takedowns or for obtaining information can be sent. This is likely to aid the social-media platforms in identifying and addressing requests coming from genuine sources and therefore will cut down the time expended in verifying the authenticity of the variety of requests received by the portals and increase their efficiency.
The new IT Rules envision a three-tier redressal mechanism in the manner noted below:
- The takedown request is first to be handled at the level of the intermediary/platform: As per the new rules, the platforms have been allowed a strict timeline of 36 hours to remove/disable objectionable content. It is worth noting that special emphasis has been given towards the protection of women and children against sexual offences.
The Rules also mandate that all intermediaries and OTT platforms are to appoint a Grievance Redressal Officer (GRO) and the contact details of the Redressal Officer as well as the reporting mechanism should be clearly disclosed on the official website of the intermediary/platform for easy access.
Further, the Rules also require the identification of the “first originator of the information” in cases of offences affecting the sovereignty and integrity of the nation.
- If the intermediary or the platform is unable to satisfactorily address the concern regarding removal of objectionable material/content, the matter then passes on to a self-regulatory body appointed by the sector or industry;
- In the event matter still remains unresolved, it is then taken up by an inter-ministerial oversight committee of the Central Government.
The SOPs appear to be a positive step towards harmonizing the needs of both – the enforcement agencies as well as the intermediaries and other platforms, so that the interests of both sides are equally represented and protected. Further, clarity regarding the roles and responsibilities of the parties involved as well as a combined effort towards streamlining the process of content takedown is being perceived as a welcome change which is likely to help avoid confusion, misinformation and compliance-related delays.