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Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021

Author: Gaurav Shanker, Managing Partner And Yamini Mishra, Associate |

Article by Business Law Chamber

Since the time Over the top (OTT) platforms have entered the Indian market, a tussle was going on amongst the judiciary, government and media and entertainment industry for regulating these platforms. Apparently, this tussle has finally come to an end as the Ministry of Electronics and Information Technology notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 (“Rules”). The Rules supersede the Information Technology (Intermediary Guidelines) Rules, 2011. The applicability of the Rules will extend to OTT platforms and will also apply to intermediaries and publishers operating in India including the overseas platforms that target Indian audiences unlike the earlier rules which were applicable only to intermediaries.

Due diligence for intermediaries

The Rules provide for complex due diligence requirements for intermediaries for self-regulation of digital content. It has provided a three months’ timeline (starting from 25 February, 2021) for intermediaries to comply with the provisions of the Rules.

Due diligence for intermediaries

Key considerations for intermediaries

  • Every intermediary is required to publish on its website, mobile based application or both, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make a complaint against violation of the provisions of the rule. Every complaint made must be acknowledged within 24 hours of its receipt.
  • An intermediary shall remove access of the information hosted, stored, published or transmitted by it, which is prohibited under law, within thirty-six hours from the receipt of the court order or on being notified by the Appropriate Government or its agency.
  • An intermediary must remove or disable access such content which shows an individual indulging in sexual act or conduct, including artificially morphed images of such individual, within twenty-four hours of the complaint made by that person
  • Every intermediary has to provide information under its control to the authorized Government agency, for the purposes of verification of identity, or investigation, or prosecution, of offences under any law for the time being in force, or for cyber security incidents within 72 hours of receipt of order from them
  • The publisher of news and current affairs content and the publisher of online curated content shall publish periodic compliance report every month mentioning the details of grievances received and action taken thereon

Key considerations for intermediaries

Additional due diligence requirements for significant social media intermediaries

Intermediaries having more than fifty lakh registered users have to undergo some additional due diligence requirements. However, other intermediaries can also be brought under this ambit, if it poses material risk of harm to the sovereignty and integrity of India, security of the State, friendly relations with foreign states or public order. Any non-compliance of due diligence requirements will lead to disqualification of intermediary from taking exemption under the provisions of the Information Technology Act, 2000 (“Act”) and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.

Compliances for OTT platforms and news portals

The type of content transmitted on the OTT platforms has become a topic of concern for the parents of teenagers who are fond of binge watching. For regulating the type of content displayed on OTT platforms, the Rules provide that the content displayed online must be classified in different categories depending upon the age limit of the audience by different kinds of ratings like U, U/A 7+, U/A13+ and U/A+. Every publisher must consider India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group. A publisher shall not transmit or publish or exhibit any content which is prohibited under any law and shall exercise due caution and discretion in relation to the content which is likely to incite violence or disturb the maintenance of public order.

All such platforms have to follow a three tier grievances redressal mechanism. The first two level provides for self-regulation and the third level provides for an oversight by the appropriate body of government.

The Rules regulate all intermediaries, OTT Platforms, social media platforms and news portals in India, while imposing stringent compliances for them, non-observance of which can trigger the penal provisions under the applicable law, however, this is, undoubtedly, a welcome move for both, the users and the stakeholders as the Rules aim to streamline the entire online entertainment industry in India, which was long-awaited.