New Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“Intermediary Rules”)
That the Ministry of Electronics and Information Technology in the year 2021 has notified the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(“Intermediary Rules”) under Section 87 of the Information Technology Act, 2000 (“IT Act”).
As per Section 2(1)(w) of the IT Act, an “intermediary”, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes.
As per Rule 2(1)(w) of the Intermediary Rules, a “social media intermediary” means an intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.
As per the Intermediary Rules, social media intermediary having number of registered users in India above such threshold as notified by the Central Government shall be considered as significant social media intermediary. That vide notification dated 25th February 2021, the Central Government hereby specifies fifty lakh registered users in India as the threshold for a social media intermediary to be considered a significant social media intermediary.
COMPLIANCES REQUIRED BY ALL INTERMEDIARIES
Under Rule 3 of the Intermediary Rules, an Intermediary is required to comply with the following requirements which are binding on an intermediary in India:
1.1.Publish on its website, mobile based application or both, as the case may be,
- the rules and regulations,
- user agreement
for access or usage of its computer resource by any person.
· not to host, display, upload, modify, publish, transmit, store, update or share any information that,—
o belongs to another person and to which the user does not have any right;
o is defamatory, obscene, pornographic, pedophilic, invasive of another‘s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating, or
o encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;
o is harmful to child;
o infringes any patent, trademark, copyright or other proprietary rights;
o violates any law for the time being in force;
o deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
o impersonates another person;
o threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting other nation;
o contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
o is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person;
1.4.An intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not
· host, store or publish any unlawful information,
o which is prohibited under any law for the time being in force in relation to
- the interest of the sovereignty and integrity of India;
- security of the State;
- friendly relations with foreign States;
- public order;
- decency or morality;
- contempt of court;
- incitement to an offence relating to the above, or
- any information which is prohibited under any law for the time being in force,
- shall remove or disable access to that information, as early as possible, but in no case later than thirty-six hours from the receipt of the court order or on being notified by the Appropriate Government or its agency.
- Where an intermediary collects information from a user for registration on the computer resource, it shall retain his information for a period of one hundred and eighty days after any cancellation or withdrawal of his registration.
- The intermediary shall not knowingly deploy or install or modify technical configuration of computer resource or become party to any act that may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force.
ADDITIONAL COMPLIANCE MEASURES FOR SIGNIFICANT SOCIAL MEDIA INTERMEDIARIES
In case, an intermediary qualifies as a social media intermediary as per the definition given under the Intermediary Rules and has more than 50 lakh users, then such intermediary has to comply with the additional compliances as provided under Rule 4 of the Intermediary Rules.
PROCEDURE AND SAFEGUARDS IN RELATION TO NEWS AND CURRENT AFFAIRS
In addition to the above compliances, an intermediary in relation to news and current affairs content shall publish, on an appropriate place on its website, mobile based application or both, as the case may be, a clear and concise statement informing publishers of news and current affairs content that in addition to the common terms of service for all users, such publishers shall furnish the details of their user accounts on the services of such intermediary to the Ministry about the details of its entity by furnishing information along with such documents as may be specified, for the purpose of enabling communication and coordination within a period of thirty days and shall publish periodic compliance report every month mentioning the details of grievances received and action taken thereon.
CODE OF ETHICS AND PROCEDURE AND SAFEGUARDS IN RELATION TO DIGITAL MEDIA
As per Rule 2(1)(i) of the Intermediary Rules “digital media” means digitized content that can be transmitted over the internet or computer networks and includes content received, stored, transmitted, edited or processed by-
(i) an intermediary; or
(ii) a publisher of news and current affairs content or a publisher of online curated content;
Under the part III of the Intermediary Rules, additional rules have been framed specifically for publishers of news and current affairs content and publishers of online curated content and such entities shall be administered by the Ministry of Information and Broadcasting, Government of India.
Penalty to be imposed in case of non observance
Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the IT Act, shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the IT Act and the Indian Penal Code, 1860.