This article on ‘Social Media Laws in India‘ is written by Managya an Intern at Legal Upanishad.
In light of the increased dependence on technology and social media, it has become increasingly crucial to regulate social media platforms to make them accountable. Social media Laws in India is regulated by the Information Technology Act, 2000 (the Act) and Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021(2021 Rules). The 2021 Rules replace the 2011 Rules making the mechanism to regulate social media more stringent. This article focuses on the scope of these rules and the mechanism they establish for making the social media laws in India more accountable for the usage of their platform.
INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) RULES, 2021
2021 Rules were made under Section 87 of the Act to create an oversight mechanism for digital media, social media and OTT platforms. It is divided into 3 parts:
- Part I – definitions and interpretations concerning the rest of the rules.
- Part II – due diligence mandatory for social media intermediaries.
- Part III – ethics code and safeguard procedure for digital media.
CLASSIFICATION OF REGULATED ENTITIES
According to the 2021 Rules the regulated entities can be classified as follows:
- Social Media Intermediary (SMI) – that has not more than 50 lakh registered Indian users.
- Significant Social Media Intermediary (SSMI) – that has more than 50 lakh registered Indian users.
- News & current affairs publishers – inclusive of news aggregators.
- Online curated content publishers – inclusive of online streaming platforms and over-the-top (OTT) platforms.
DUE DILIGENCE UNDER THE 2021 RULES
SMEs are mandated to follow the below mentioned due diligence under the 2021 Rules:
- to not use the information which belongs to another person or causes infringement of intellectual property rights of anyone or is pornographic or pedophilic etc.
- of the termination of their access to the platform in case of non-compliance with the policies.
- of any change in the policy.
- Removal of objectionable content within 36 hours upon knowledge through court order or notification by an appropriate government and; within 24 hours of receipt of individual content concerning sexual content.
- Protection of data by the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011.
- Provide access to information controlled or possessed by it within 72 hours of receiving notification or court order concerning appropriate government.
- Reporting of any incident relating to cyber security. The platform should also make to inform the Indian Computer Emergency Response Team as per the specified rules.
- Appointment of Grievance Redressal Officer (GRO) and publication of his name and contact details on the platform prominently. GRO is obligated to acknowledge any content related complaint within 24 hours and dispose-off the same within 15 days.
Additional Due Diligence for Significant Social Media Intermediary (SSMI):
Under the 2021 Rules, the Significant Social Media Intermediary (SSMIs) are required to carry out additional due diligence which includes:
- Appointment of a Chief Compliance Officer who ensures compliance of the platform with the Act.
- Appointment of Nodal Contact Person for 24×7 assistance of law enforcement agencies.
- Appointment of Resident Grievance Officer for the proper functioning of grievance redressal mechanism.
- Publication of regular reports concerning complaints and actions taken on them.
- Back up of chats on the encrypted server by the SSMIs that provide messaging services to enable identification of the first originator of information within India.
- In case the intermediary has a direct financial benefit by the display of any information then that information should be marked as advertised, sponsored, owned, marketed or exclusively controlled.
- Publication of a physical contact address in India on the platform for communication.
- Utilize technological measures for the identification of content which is sexually abusive in nature or has been previously removed followed by issuing notice to the user trying to gain access to such content.
- Establishing a functioning and user-friendly mechanism for complaints and grievance redressal.
- Enable procedure for verification of users in India by the use of Indian mobile numbers. Those users verifying voluntarily should be displayed a visible mark of verification.
- Publication of compliance reports by the platforms every month along with the details of complaints, action taken and pro-active monitoring.
Section 79(1) of the Act is a provision of the safe harbor for the social media intermediaries. Intermediaries not complying with the 2021 Rules cannot claim protection under section 79(1) of the Act.
ETHICS CODE RELATING TO DIGITAL MEDIA
News & current affairs publishers and online curated content publishers have to follow the ethics code prescribed under the 2021 Rules. These include:
- OTT platforms self-classify its content into 5 age basedage-based categories
- Implementation of parental locks by the platforms for any content classified as an adult for the age group of 13 years or more.
- Implementation of reliable mechanisms for verification of the age of the user for adult classified content
- Prominent display of classification rating and advisory on viewer description specific to each content to allow the user to user to make an informed choice
- News and current affair publishers to follow Norms of Journalistic Conduct as laid down by the Press Council of India and the Programme Code made under the Cable Television Networks Regulation Act, 1995
- Exercise discretion and consideration of national integrity and security, and religious beliefs when featuring content
- Better access of the content to disabled persons
GRIEVANCE MECHANISM FOR DIGITAL MEDIA
A three-level grievance redressal mechanism for users of news or OTT platforms is also laid down by the Social Media Rules, 2021.
- Self-Regulation by Publishers – Any complaint filed with the publisher concerning the content published on the platform should be addressed within 15 days.
- Self-Regulation by Body of Publishers – In case of dissatisfaction with the resolution of the complaint it can be escalated to the association of publishers within the specified time period. Then also the complaint must be addressed within 15 days.
- Oversight Mechanism – The complaint can then be escalated by the association or the complainant or can be considered by the Ministry itself. At this level, an inter-departmental committee instituted by the Ministry of Information and Broadcasting will consider the complaint
The present framework for the regulation of social media laws in India has been criticized in multiple facets.
The framework established for such regulation is considered to be more than the executive powers given under the parent Act and its scope. Regulation of online platforms is not a part of the objective of the Act even though the Social Media Rules, 2021 are established under it.
The extent to which the intermediaries can be held accountable for the content when most of it is user-generated has become a matter of major concern. The intermediaries serve merely as conduits and storage providers. The content creation and its use are done by the users. Only holding the intermediaries liable takes away the accountability of the users to a great extent.
The balance between regulating and maintaining privacy is quite tricky. The oversight mechanism tends to hamper the freedom of speech. Both the opposing rights need to exist in harmony without infringing on each other unreasonably.
The Social Media Rules, 2021 established under the Act define the social media intermediaries and platforms it applies to and lays down a meticulous system for their regulation. It makes rules to prevent, detect and resolve grievances that can arise on such platforms. Keeping in mind the instantaneous nature of these platforms the grievance redressal mechanisms are also made to be prompt.
The Social Media Rules, 2021 are suitable concerning the present state of social media platforms and the issues arising in them but given the ever-evolving technology it is not enough to keep up with the issues that may arise in the future with the advancement of technology. It would be prudent to lay down legislation and framework updated to the technology.
- Vikram Dubey, Vibham Raman and Shubham Aggarwal, “Social Media Rules 2021: Transforming Social Media”, Monday, June 02, 2021 Retrieved: https://www.mondaq.com/india/social-media/1075196/social-media-rules-2021-transforming-social-media
- Bhumika India, “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”, SCC Blog, May 26, 2021 Retrieved: https://www.scconline.com/blog/post/2021/05/26/information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021-2/
- Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, PRS India, February 25, 2021 Retrieved: https://prsindia.org/billtrack/the-information-technology-intermediary-guidelines-and-digital-media-ethics-code-rules-2021
- Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 Retrieved: https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf