An analysis of IT (Guidelines & Digital Media Ethics Code) Rules, 2021

By: Srishti Rongpipi

The omnipresence of digital media has been intricately woven into our social, political, and psychological fabric. It became a powerful crutch for India’s dwindling economy during the pandemic. Access to social media became analogous to classrooms for students, space for professionals, and primary news source for many.

Need of the hour

However, the many flaws of social media vitiate its utility. For instance, the nebulous nature of the Covid-19 crisis propelled many conspiracies and misinformation to an already angst public. Many regularly flaunted social distancing and mask-wearing citing unverified sources from digital platforms. In 2020, the ad hoc committee of the Rajya Sabha expressed concerns about rampant child pornography, revenge porn, and other explicit content on social media. Thus, there was a strong need of the hour for governmental intervention in the current digital dispensation.

Guidelines and practicality

The new ‘Information Technology (Guidelines and Digital Media Ethics Code) Rules’ of 2021 underscores the efforts by the government for regulating online content. It replaces the Information Technology (Intermediary Guidelines) Rules of 2011. It was notified on 25th February 2021 by the Ministry of Electronics and Information Technology, and digital platforms were given 3 months to comply.

The new rules render guidelines for mainly three types of digital platforms: Digital news, Over-the-top (OTT) streaming sites, and Social media platforms. As per the rules, digital news sites have been directed to follow the Press Council of India, Cable TV Networks (Regulation) Act, and establish self-regulatory bodies. The OTT platforms have been instructed to rate content based on five age categories: ‘U’, ‘U/A 7+’, ‘U/A 13+’, ‘U/A 16+’ and ‘A’. They are required to establish parental locks for categories U/A 13+ and higher and verify user’s age for access to A-rated content.

With respect to social media, the rules aim for intermediaries, mainly messaging applications, to identify the ‘first originator of information of content deemed to be “anti-national”. They are instructed to appoint an India-based grievance officer to address user complaints within 15 days and file monthly reports on complaints received and actions taken. They are mandated to take down any graphic content that shows nudity or sexual acts of individuals or morphed images.

The backlash

Ever since its publication, the rules have been widely condemned for multiple reasons. Firstly, the inconspicuous modality of its launch made the public and digital platforms wary of its ominous implications. The executive move was criticized for issuing the rules under the IT Rules, 2000, and augmenting its previous gamut. Conventionally, introducing a whole set of new rules requires parliamentary deliberation and legislative action. Furthermore, no major digital stakeholder was consulted nor public suggestions sought on the matter.

Whatsapp, a popular messaging app, challenged the rules in the Delhi High Court contending that Article 21 of the Indian Constitution which provides citizens with the Fundamental Right to Protection of Life and Civil Liberty, also guarantees citizens the inherent Right to Privacy. They argued that all messages would need to be traced for the ability to trace the source of one message, creating a sort of permanent identity stamp of every message by every user. Thus, tracing the ‘first originator of data’ will render the platforms’ privacy policies, which provide their users end-to-end encryption, obsolete.

Autocracy of the rules

In case of non-compliance with any of the rules, social media sites will lose their privilege under the ‘Safe Harbour’ provisions of the IT Act which exempts them from legal liability for the content posted on their site. The rules also bound an intermediary to take down content within 36 hours of receiving an order from the government. These conditions inadvertently undermine their autonomy and limit the scope of challenging any order.

The rules open the door for digital platforms to be used as mere pawns for the State’s rhetoric- blocking, deleting, or modifying any content critical of the government of the day. Even as the government assures the detection of the first originator will be used as a last resort measure, with all the precedents available, it only points to the creation of a dangerous slippery slope in media censorship and compromised freedom of expression. Until now, the tool used for curbing dissent and dissenters was the archaic Sedition Act of 1870.

India’s international image

According to the ‘Freedom on the Net 2020’ report published by Freedom House, a US-based non-profit research institute, India scored 51 out of 100 in its internet freedom score. India’s status as a democratic nation was demoted from “Free” to “Partially Free” on account of its waning internet independence. India was also ranked as the country with the most government-imposed internet shutdowns in the world.

Nominal benefits

The rules, nonetheless, deserve credit for many of the benefits it serves. It establishes a resident grievance officer to look into the complaints of social media users. It also mandates labelling to inform users whether the content consumed is an advertisement, sponsorship, or original. It aims to make social media policies more user-centric, accountable to the needs of their users, and not their advertisers.

The rules aspire to empower the Indian netizens and engender a safe online space for them. Active monitoring will expedite identifying and removing any content containing nudity, harmful speech, and anti-social elements. This will also prove to be effective in combating child porn, revenge porn, and human trafficking. The publication of monthly compliance reports will also bring more transparency to social media functioning.

Way forward

The new rules cement the government’s already contentious relationship with many social media giants. The Digital News Publishers Association (DNPA), comprising of major media players, has now filed a writ petition in the Madras High Court challenging the new rules as ultra vires to the Constitution. It would be tenable for the government to seek collaboration with different experts and stakeholders of the policy and come to a compromise. The government should also look into enacting the Personal Data Protection Bill of 2019 which could mitigate and abate the many privacy concerns of internet users. Until then, Big Media gears up for a fight and the world’s largest democracy hangs on a treacherous rope of losing that very title.