Introduction
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules, 2021") recently were subject to review by the Courts when digital media platforms questioned the constitutional validity of specific provisions concerning the prescribed "Code of Ethics" and termed it as an attempt to restrict the freedom of speech and expression (refer to our article here)1. The IT Rules, 2021 were formulated after years of discussions and debates, and were primarily formulated for monitoring social media and digital media platforms and empowering the users of social media by establishing a three-tier redressal mechanism for efficient grievance resolution (refer to our previous article here)2. The Ministry of Electronics and Information Technology ("MEITY") on November 1, 2021 issued a compendium of frequently asked questions ("FAQs") and provided relevant clarifications vis-à-vis the IT Rules, 2021. These FAQs attempt to provide clarity and interpretation to the IT Rules, 2021 especially the compliances to be followed by intermediaries. The FAQs are limited to Part II of the IT Rules, 2021 to be administered by MEITY. Key clarifications, inter alia, include:
Key Clarifications
Enhancement of the Safety of Women and Children: In response to Query 5 of the FAQs related to how IT Rules enhance safety of women and children, MEITY clarifies that the IT Rules, 2021 have a clear objective of enhancing online safety of users, particularly women and children and refers to various provisions of the IT Rules which inter alia require enhanced grievance redressal mechanism by intermediaries and require cooperation from intermediaries with the Law Enforcement Agencies to identify the first originator of information related to rape, sexually explicit material or child sexual abuse material for investigation and prosecution.
Right to Privacy of Individuals: In response to Query 6 of the FAQs regarding the impact of IT Rules on the right of privacy of individuals, the FAQ clarifies that the IT Rules, 2021 are consistent with the fundamental right to privacy and have a clear focus on protecting the online privacy of individuals. The IT Rules, 2021 further prescribe safeguards vis-à-vis the identification of the first originator of messages and ensure that the privacy of users is not violated during such identification operations.
Right to Free Speech and Expression: In response to Query 7 of the FAQs regarding the adverse impact of the IT Rules, 2021 on the right of free speech and expression, MEITY clarifies that the IT Rules do not affect the right to free speech and expression guaranteed under Article 19 of the Constitution. A robust grievance redressal mechanism has been put in place to ensure that users whose content or access is unreasonably removed may highlight such error to the intermediary for remedial action.
Qualifying as an "Intermediary": On the issue of which entity will qualify as an "intermediary", the responses to Queries 11 and 12 of the FAQs explain that with the evolution of technologies and hence proliferation of digital businesses and services, many other platforms of different kinds may qualify as intermediaries with respect to the third-party content made available, shared, hosted, stored or transmitted on their platforms including websites and mobile applications. Furthermore, it is clarified that to qualify as a "social media intermediary", it is imperative that the enablement of online interactions is the primary or sole purpose of the "intermediary" and an entity which has some other primary purpose, and only incidentally enables online interactions, may not be considered as a "social media intermediary".
Significant Social Media Intermediaries: Response to Query 13 of the FAQs clarifies that as per the Gazette Notification3, a "social media intermediary" having fifty lakh or five million registered users in India shall be considered a "significant social media intermediary" ("SSMI").
Appointment of Nodal Officer: In response to Query 18 of the FAQs, it is clarified that the chief compliance officer and the nodal contact person cannot be the same person, whereas the roles of the nodal contact person and the resident grievance officer may be performed by the same person. However, MEITY suggests that it is desirable that SSMI appoints separate persons for the two roles considering the functional requirements of the nodal contact person and the resident grievance officer.
"Reasonable" Explanations to User Complaints: Response to Query 21 of the FAQs details the requirement of intermediary, to the extent reasonable, to provide the complainant with reason for any action taken or not taken and the criteria on what would qualify as 'reasonable'. The FAQ clarifies that the users should be made to understand the methodology used by the resident grievance officer of the intermediary in dealing with the complaint and the intermediary should provide a reasonable explanation to the user. It is further stipulated that in case of a frivolous complaint, the nature of the complaint can be cited as the reason for any action not being taken as the idea is to promote accountability while giving flexibility.
Compromise of end-to-end Encryption: In response to Query 24 on whether detection of the first originator of the message in the messaging platforms would compromise encryption, the FAQ clarifies that the intent of the Rule is not to break or weaken the encryption in any way but merely to obtain the registration details of the first Indian originator of the message. The electronic replica of the message (text, photo or video, etc.) will be shared by the requesting agency along with a lawful order.
Non-compliance with the IT Rules, 2021: Responses to Queries 27 and 28 of the FAQs prescribe the impact of non-compliance with the IT Rules, 2021 and the potential penalties for users violating the Rules. In case of non-compliance with the IT Rules, 2021, the intermediary shall lose its exemptions from liability as provided under Section 79 of the Information Technology Act, 2000, and Rule 7 of the IT Rules may become applicable with respect to the extant law violated. It is also clarified that even though there are no penalties prescribed for users under the IT Rules, 2021, users must ensure that the content they share on intermediary platforms is not violative of other relevant existing laws.
Analysis
Through the publishing of these FAQs, the government via MEITY has undertaken steps to demystify the subjective interpretation and ambiguity surrounding these highly debated IT Rules, 2021. As discussed in the paragraphs above, the FAQs intend to clarify significant questions related to the impact of the IT Rules, 2021 including on the fundamental rights guaranteed by the Constitution. An attempt has been made to strike a delicate balance between the obligations of intermediaries and the rights of users. Recent controversies in interpretation and enforcement of the IT Rules (followed by various High Court judgements) didn't help in positively promoting the IT Rules and the FAQs are striving to provide guidance to users, digital media agencies and intermediaries with regard to the provisions of Part II of the IT Rules, 2021.
Footnotes
3 https://egazette.nic.in/WriteReadData/2021/225497.pdf
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