Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
The Information Technology Act, 2000 is an Act of the Indian Parliament notified on 17 October 2000. It is the primary law in India dealing with cybercrime and electronic commerce. Over the years, the use of information technology has diversified. With the rise of internet access various new services have emerged, and as a result updated guidelines have been announced by the government.
Section 79(1) of the IT Act, 2000 provides exemption from liability for intermediary, in cases where any third-party information, data, or communication link made available or hosted by the intermediary. Sub-section (2) gives the conditions for the application of this section, which are-
- the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
- the intermediary does not-
- initiate the transmission,
- select the receiver of the transmission, and
- select or modify the information contained in the transmission;
- the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
Sub-section (3) gives the conditions where sub-section (1) shall not apply, that are-
- the intermediary has conspired or abetted or aided or induced, whether by threats or promise or authorize in the commission of the unlawful act;
- upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource, controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is secondary or subordinate legislation that suppresses India’s Intermediary Guidelines Rules 2011. The Central Government, Ministry of Electronics and Information Technology (MeitY) and Ministry of Information and Broadcasting have coordinated in the development of these new rules.
The 2021 rules have stemmed from section 87 of the Information Technology Act, 2000, which gives Central Government the power to make rules to carry out the provisions of the IT Act.
The news rules are made in the light of draft Intermediaries Rules, 2018 and the OTT Regulation and Code of Ethics for Digital Media. Draft Intermediaries Rules, 2018 was prepared by MeitY to replace the 2011 rules. Aim of this draft was to elaborate the liabilities and intermediaries. Aim of the 2018 draft was to prevent the spread of fake news, curb obscene information on the internet, prevent misuse of social-media platform and to provide security to the users.
Rules to be administered by MeitY include the due diligence required of intermediaries and the grievance redressal mechanism. Rules to be administered by MIB include a code of ethics, a self-classification system and an oversight mechanism.
Key features of the Intermediary guidelines are:
- where an intermediary collects information from a user for registration on the computer resource, it shall retain the information for a period of 180 days after any cancellation or withdrawal of the registration
- the intermediary shall, immediately but not later than 72 hours of the receipt of an order, provide information under its control or possession, or assistance to the Government agency which is lawfully authorized for investigative or protective or cyber security activities, for the purposes of verification of identity, or for the prevention, detection, investigation or prosecution, of offences under any law for the time being in force, or for cyber security incidents.
- appointment of a chief compliance officer who will be responsible for ensuring compliance with the provisions of the IT Act and rules framed thereunder and will also be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by the intermediary where the officer fails to ensure that such social media intermediary observes due diligence while discharging its duties under the IT Act and rules framed thereunder.
- appointment of a nodal contact person for 24×7 coordination with law enforcement agencies and officers to ensure compliance with their orders or requisitions.
- A publisher of new and current affairs contents is required to adhere with the provision of the Code of Ethics, annexed with the Intermediary Guidelines. For the purposes of ensuring observance and adherence with the prescribed Code of Ethics by publishers and for addressing the grievances against the publishers, a three-tier grievance redressal structure has been prescribed.