India, in recent years, has seen a massive surge in the number of internet users and people accessing social media platforms. The pandemic and the ensuing lockdown have doubled these numbers as more and more consumers turn to social media for interaction with their friends and families. At the same time, the digital explosion has given rise to concerns, namely lack of transparency, accountability, and users' rights related to digital media. 

Of more significant concern is the misuse of these platforms in spreading false news, sharing obscene images, child pornography, blasphemy, etc. Thus, intending to keep a check on these online platforms and their use, the Ministry for Electronics and IT has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, framed under the Information Technology Act, 2000. The post focuses on Intermediary Guidelines proposed to be notified and will supersede the existing Intermediary Guidelines Rules, 2011.

Due Diligence to be followed by Intermediaries: Intermediaries will need to comply with the prescribed due diligence, and in case they fail to comply, safe harbor provisions will not apply.

Grievance Redressal Mechanism: Intermediaries to establish a grievance redressal mechanism for receiving and resolving complaints from the users or victims. Intermediaries shall appoint a Grievance Officer to deal with such complaints and share the Officer's name and contact details. The Officer shall acknowledge the complaint within twenty-four hours and resolve it within fifteen days from its receipt.

 Ensuring online safety and dignity of users, specially women users: Intermediaries to remove or disable access within 24 hours of receipt of complaints of contents pertaining to sexual acts, full or partial nudity, impersonation, morphed images, etc.

 Two categories of social media intermediaries: The rules make a distinction between social media platforms, namely, social media intermediaries and significant social media intermediaries, based on the number of users that have yet to be notified.

The significant social media intermediaries shall follow certain additional due diligence in appointing the following:

Chief Compliance Officer for compliance and the Officer to be residing in India.

 Nodal Contact Person for coordination with law enforcement agencies and the Officer to be a resident of India.

 Resident Grievance Officer to perform the function under Grievance Redressal Mechanism and Officer to be residing in India.

 Publish a monthly compliance report on the complaints received, action taken, contents removed proactively by the significant social media intermediary.

Social media intermediaries providing messaging services will need to enable identification of the first originator of the information for the purposes of:

prevention, detection, investigation, prosecution, or punishment of an offence related to sovereignty and integrity of India, the security of the state, friendly relations with foreign states.

public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

Voluntary User Verification Mechanism: Users who wish to verify their accounts voluntarily shall be provided an appropriate mechanism to verify their accounts and provided with demonstrable and visible mark of verification.

Giving Users an opportunity of hearing: Significant social media intermediaries to ensure that prior to removal or disabling of access to any information, data or communication link, it has to provide the user who has created, uploaded, shared, disseminated, or modified information, data or communication link using its services with a notification explaining the action being taken and the grounds or reasons for such action

Intermediaries to take down/remove unlawful information based on a court direction or a government agency's order.

The Rules will come into effect from the date of publication in the gazette, except for the additional due diligence for significant social media intermediaries, which will come into effect 3 months after publication of these Rules.

Our comment

The most contentious and subject of debate is the requirement of a traceability framework for messaging platforms WhatsApp, Signal, Telegram, etc. Issues are also likely to crop up, considering these regulations will apply to platforms that may be conducting business activity in India targeting Indian consumers but not necessarily having a physical presence in the country. Further, the end-to-end encryption offered by them may need changes. It remains to be seen how effectively these rules can be implemented, or they will face legal impediments in the coming days.