Analysis of IT Rules, 2021: An Assault on Privacy?



The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, was passed by the Ministry of Information, Government of India, on February 25, 2021. The Government has made an official statement in response to the Rules, stating:

"Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under Section 87(2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules, 2011."


Today, social media is more than a source of pleasure; it has also evolved into a platform for trade and commerce. It has also upheld the fundamental criteria for information transmission and provided a space for people to express their views and beliefs openly. There are 530 million WhatsApp users in India, according to data given by the Press Information Bureau. YouTube has 448 million users, and on the other hand, Facebook and Instagram each have 410 million and 210 million users, respectively.

How to Bell the Cat on Social Media?

India's lockdown and COVID phases served as a defining moment for the country, revealing the stark truth of its dependency on social media. 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 times. Social media has been widely used to harass and abuse women and invade people's privacy in recent years. Hence, there was a need for a different law that limited those who abused or misused social media. In such cases, the victim's powerlessness was exacerbated by the lack of a solid complaint process. 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 discovered that while social media platforms are typically intended to serve as middlemen, they frequently take on the role of publishers or editors of information.


IT Rules, 2021: Key Provisions

These issues appear to have been handled by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Social media intermediaries are split into two groups under the IT Rules of 2021:

● Social media intermediary

● Significant social media intermediary


Intermediaries' Due Diligence

Rule 4 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, discusses the issue of due diligence that intermediaries must follow. It also clarifies the scope of the safe harbour rules outlined in Section 79 of the Information Technology Act of 2000.


Display of Privacy Policy and Personal Data Use

Rule 4 requires the intermediary to prominently display the privacy policy and the use of personal data or information for its users on his website or application, or both. Furthermore, the privacy policy or user agreement should be written in such a way that the user is bound not to host, display, upload, modify, publish, transmit, store, update; or share any information that is contrary to societal rules, unethical, defamatory to the general public, or misleading to the general public. Any material that jeopardises a person's dignity would fall under the scope of this rule.


Any information about the state's unity, integrity, and sovereignty will not be considered per the specified law. Furthermore, intermediaries must advise users that if unethical material is communicated, their account will be terminated, or the information not in compliance with the user agreement or privacy policy will be removed.


Specify the details of the Grievance Redressal Mechanism

The intermediary must publish the name of the Grievance Officer and their contact information, and 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 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 a month.


Removal of Unethical Information

The intermediary must be diligent if it comes to its attention that any information transmitted on its portals is unethical. Therefore, as outlined above, it must remove such information as soon as possible, as required by Section 79(3) of the Information Technology Rules, 2000. Furthermore, after removing such information, the intermediary must keep the specified information for an investigating period of one hundred and eighty days.


Monthly Compliance Report

Significant social intermediaries must then do further due diligence following Rule 5 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. It lists the responsibilities of the Chief Compliance Officer, the Nodal Contact Person, and the Resident Grievance Officer. It further specifies that all of these officers must be Indian citizens, and a Monthly Compliance Report must be published as a requirement. Details of complaints received and actions performed in response to such complaints, as well as details of contents removed proactively, should be included in the report.


Removal of information portraying a person in a negative light, obscene acts

Furthermore, an intermediary is obligated to remove information within twenty-four hours after receiving a complaint from a person that portrays that person in a negative light, exposes their private parts, or depicts that person in a sexual act or nudity. A complaint might be submitted by an individual or on his or her behalf.


First Originator of Information

One of the most critical aspects of the stated Rules is identifying the "First Originator of Information" required by a Court or competent authority under Section 69 of the Information Technology Act, 2000.


However, the difficulty is the uncharted possibility, given that many intermediates say 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 matter was initially filed in the Madras High Court for adjudication. As a result, technology behemoths like Facebook and YouTube were named as defendants in the case. Because the suit was pending in a couple of other High Courts, including the Bombay High Court and the Madhya Pradesh High Court, Facebook later sought the Supreme Court. Facebook/WhatsApp argued that it utilises end-to-end encryption, making it challenging to track a message's source. Even WhatsApp does not have decryption keys, so it does not 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.


User Verification on the User's Initiative

The "Voluntary User Verification" is one of the new provisions in the IT Rules for 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 raging discussion about whether the entire process of user authentication should be voluntary.

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


News Publishers in the Digital Media

The social media middlemen are not the only ones who are governed by the law. The Information Technology Rules of 2021 also aims to govern news publishers in digital media. In three steps, it works on the grievance redressal for the same. The following is how they are expressed:

The IT Rules, 2021 stipulate that news publishers in the digital media must adhere to the Press Council of India's Norms of Journalistic Conduct and the Cable Television Networks Regulation Act, 1995's Programme Code, ensuring a level playing field between offline (print, television) and digital media. In addition, its jurisdiction extends to the regulation of foreign news media.


There is also a discussion on appointing a Grievance Redressal Officer to address all grievances and resolve them within 15 days. There is also a requirement to establish a self-regulatory organisation that must be registered with the Ministry of Information and Broadcasting, review the publisher's adherence to the Code of Ethics, and address issues that the publisher has not resolved within 15 days. A retired Supreme Court judge, a High Court judge, or an independent distinguished person should lead this committee, with no more than six members.


IT Rules, 2021 and OTT Platforms

The 2021 IT Rules have also attempted to address the issue of OTT Platforms:

● Content must be self-classified into five age groups by OTT Platforms. U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adults).

● Parental Control and Age Group Classification

● The Code of Ethics also stipulates that platforms must adhere to the age restriction and may even need parental oversight or locks for those under 18. The Rules mention AI automated censorship, which is one of the most important things at this stage.


Conclusion

The new IT Rules for 2021 are a positive move toward bringing information, users, and intermediaries, such as social media, onto the same platform. Because social media platforms may be used to ask questions and get feedback, they are an essential tool that should be used responsibly. Social media platforms have empowered ordinary users, yet they require accountability for their usage and abuse. The new Rules empower ordinary social media users by providing a framework for grievance redressal and swift resolution. The framework proposed is progressive, liberal, and contemporary. It aims to address a wide range of concerns while dispelling any fears of stifling innovation and freedom of speech and expression.


The Rules are currently being scrutinised, and various organisations object to them since they are anti-democratic and take away digital rights. However, while strict, the Rules will play a significant part in the evolution of social media control mechanisms in the coming times. Therefore, enforcement action must be taken against violations of IT Rules by 2021, which will decide the future of social media misuse in India.


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