India has the 2nd largest number of internet users in the world behind China and according to recent statistics published by the Press Information Bureau of India, platforms such as WhatsApp have approximately 530 Million users, Facebook’s flagship platform surpassed 410 Million users, Facebook-owned Instagram amassing 210 Million and YouTube and Twitter with 450 Million and 17.5 Million users in country, respectively.
To better regulate these social media platforms, streaming services and digital news platforms, on February 25th 2021, the Indian government enacted the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (the “2021 Rules”) which supersedes the decade old Information Technology (Intermediary Guidelines) Rules, released in 2011. The main aim of the 2021 Rules can be considered to be two fold: (i) increase accountability of social media platforms via the introduction of measures of scrutiny on the publication and transmission of content; and (ii) embody a mechanism of redressal and timely resolution of user grievances.
In this article we have analyzed some of the key rules applicable to social media platforms, streaming services and digital news platforms.
Rules Applicable to Social Media Intermediaries
(i) Classification of Significant Social Media Intermediaries: Social media intermediaries with 5 Million registered users or more have been classified as significant social media intermediaries (the “significant intermediaries”) and are subject to the maximum levels of compliance under the 2021 Rules. Additionally, the Government may require any other intermediary to comply with the rules applicable to significant intermediaries if services of such intermediaries impose a material risk to the sovereignty or integrity of India, security of the State, etc. Therefore, in effect, even smaller social media platforms, could be brought under the ambit of these stricter rules.
(ii) Appointment of Officers and Publication of Contact Address in India: All significant intermediaries are required to appoint: (a) a Chief Compliance Officer; (b) a Nodal Contact Person; and (c) a Resident Grievance Officer, each of whom are to be employees residing in India. Furthermore, while foreign intermediaries are not required to be compulsorily incorporated in India, significant intermediaries domestic or foreign, are required to have a physical contact address in India published on its website or mobile application or both.
(iii) Monitoring of Offensive Content: Significant intermediaries are required to use technology-based measures, including automated tools, to identify content that has previously been removed or content depicting rape, child sexual abuse or conduct of a similar nature and regularly maintain and review such tools.
(iv) Compliance Reports: Significant intermediaries are required to publish a monthly report containing details of (a) the complaints received; (b) actions taken; and (c) number of links/ information removed or to which access is disabled, pursuant to monitoring by using automated tools, or any other relevant information as may be deemed necessary.
(v) First Originator of Content: Significant intermediaries providing messaging services are required to assist the law enforcement agencies to identify and track the first originator of any contentious content or information. This power can only be exercised in order to curb any offense threatening the integrity or security of the State, inciting the commission of rape, child sexual abuse or other grievous offenses. However, this may not be resorted to on the availability of less intrusive means and must be used only as a last resort.
Rules Applicable to Streaming Platforms and New Portals
The 2021 Rules have introduced a Code of Conduct which is mandatorily required to be followed by all streaming platforms and news portals with any non conformity under the code resulting in such platforms or portals being subject to punishment under the laws of India. All streaming platforms and news portals are required to establish a three-tier grievance redressal mechanism and submit monthly compliance reports setting out details of grievances received, and actions taken by them. Furthermore, streaming platforms are required to classify all content such as films, web-series or other shows based on age, themes, content, tone and impact, as well as their target audience.
Conclusion
With the rapid growth of social media and digital platforms in India, the 2021 Rules are a welcome move and will help regulate these platforms in a much better fashion. However, the introduction of concepts such as “First Originator of Content” is contentious. While this provision has been introduced to prohibit the spread of “fake news” or illegal content, many tech-giants are of the view that this will eventually result in intervention of “end-to-end encryption” models adopted by messaging platforms and therefore lead to a major breach of privacy policies of these platforms. Therefore, the overall impact of the 2021 Rules on the Indian digital markets remains to be seen.
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