The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 & Twitter.
As we all are well acquainted with the fact that the Article 19(1)(a) of Indian Constitution prescribes that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode.
The Constitution of India 1949prescribes that:-
19. Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence
(Since this Article is concerned only with the “Use and Misuse of the Freedom of Speech and expression”, therefore the other explanations concerned with the 19(1) (b) to 19(1) (g) are excluded.)
It would not be out of play to point out here that “The right to freedom of speech and expression is subject to limitations imposed under Article 19(2). Public order as a ground of imposing restrictions was added by the Constitution (First Amendment) Act, 1951. Public order is something more than ordinary maintenance of law and order. Public order in the present context is synonymous with public peace, safety and tranquillity.”
The right to freedom of expression is documented as a human right under article 19 of the Universal Declaration of Human Rights (UDHR) and accepted in International Human Rights Law in the International Covenant on Civil and Political Rights (ICCPR). The version of Article 19 in the ICCPR later amends this by stating that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary ” or respect of the rights or reputation of others” or ” the protection of national Security or of public order (order public), or of public health or morals.”
Freedom of speech and expression, therefore, may not be recognized as being absolute, and common limitations or boundaries to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labelling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security and perjury.
MISUSE OF THIS RIGHT as and by way of Hate Speech and Fake News:-
Some views are illegal to express because it can cause harm to others. This category often includes speech that is both false and dangerous, such as falsely shouting “Bomb” at Railway Station and causing Panic or publishing / posting some derogatory pictures, words, statements etc. knowing that the same are false and fabricated and thereby causing hurt/damage to the public sentiments. Justifications for limitations to freedom of speech often reference the ” harm principle “or the “offence principle.” Identification of the “first originator of the information” would be required in case of an offence related to sovereignty and integrity of India. The OTT platforms such as (Netflix and Amazon etc.) online news and digital media entities, social media platforms, Print media etc. must be responsible to follow a Code of Ethics. It is pertinent to note here that OTT platforms are recognised as ‘publishers of online curated content’ under the new rules. They need to include age verification mechanisms for content classified as ‘Adult’.
The concerned rules implemented by the legislature at the relevant time when our country is persistently striving to safeguard the safety and sovereignty of the cyberspace and of personal data. Social media is increasingly becoming an important part of an individual’s life. Instances of use of abusive language, defamatory contents and hate speech in these platforms have become very common. A Survey has revealed that Facebook has 290 million, Twitter 17 million, YouTube 265 million and Instagram, 120 million user base.
With such a huge populace dependent on social media platforms, the tech-giants cannot choose to ignore the new and emerging encounters like persistent spread of fake news, hate speech, rampant abuse of the platforms to share morphed images of women, deep fakes and other contents that threaten the dignity of women and pose a threat to security.
The REQUIREMENT OF LAW/RULES:- We should know about certain dangerous occurrences which are as follows:-
1:- The Delhi Police Cyber Cell arrested a 22-year-old climate activist Disha Ravi from Bengaluru for her alleged role in editing and spreading a campaign document tweeted by Swedish activist Greta Thunberg to support the farmers’ protest against Central government’s agricultural laws.Subsequently she was released on bail and the case is still going on. The said Toolkit was shared on Twitter and spread all over the world to create the panic and destroy the peace and harmony in India at length.
2:- On 24 February, in the throes of Hindu-Muslim riots in northeast Delhi, various videos of the riots started going viral. India has seen plenty of communal violence in the past, but in today’s time of social media, these aggressions are not just restricted to the regional or local population, the entire country is taken along. The fog of rumours, innuendo, and hate that act as kindling in a local communal clash immediately spread across India through social media. This has reduced the social distance between local communal conflict and national communal polarisation. Today, a local communal conflict can be made a national issue in seconds, and a larger communal narrative can quickly be constructed from a patchwork of local incidents.
3:- The new coronavirus strain has created a controversy where the ruling Bharatiya Janata Party (BJP) and Opposition Congress party are accusing each other of defaming them. The saffron party had accused the Congress of creating a ‘toolkit’ that seeks to tarnish the image of the country and Prime Minister Narendra Modi by calling the new strain of the novel coronavirus the “India strain” or the “Modi strain”. However, Congress denied the allegation and claimed that the BJP is propagating a fake ‘toolkit’ to defame it. The party said that its research team made a “note” on the Central Vista project for the party, which the BJP “forged” and used for propaganda.
Not only the aforesaid, there are several other examples also available before us, which are clearly and specifically demonstrating the misuse of the Media platforms.
In view of such emerging challenges, the Supreme Court in 2018, in the Tehseen S. Poonawalla v/s Union of India case, directed the government to curb and stop dissemination of explosive messages and videos on various social media platforms which have a tendency to incite mob violence and lynching of any kind.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was notified by the Ministry of Electronics and Information Technology in the month of February, 2021. The Rules provided three months timeline to social media intermediaries in order to comply with the New IT Rules thereby making all social media platforms to comply with the new Rules by May 26, 2021.
The Rules provides the due diligence to be followed by an intermediary (including social media intermediary) while discharging its duties, Grievance Redressal Mechanism and Digital Media Code of Ethics.
It is known by every prudent person that media platforms like Google, Facebook, WhatsApp, Telegram, Koo, Sharechat, and LinkedIn have shared details with Ministry of Electronics and Information Technology as per the requirement of the new norms.
The “Twitter” asked for an extension of the compliance window and called for a productive interchange and a combined approach from the government to safeguard freedom of expression of the public.
WhatsApp also filed a case in the Delhi High Court against the government on grounds that the new rules violated customer privacy. The Other entities like The Wire, LiveLaw and The Quint have also challenged “The new Intermediary Guidelines and Digital Media Ethics Code”.
We shall make a healthy inspection of the Exemptions given by legislature under the provisions of Section 79 of The Information Technology Act, 2000.
Section 79 in “The Information Technology Act, 2000”.
79 Exemption from liability of intermediary in certain cases. –
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if-
(a) 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
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) 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.
(3) The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or othorise in the commission of the unlawful act;
(b) 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.
Explanation. -For the purpose of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.
Here and now let us see what are the “The new Intermediary Guidelines and Digital Media Ethics Code”.
MINISTRY OF ELECTRONICS AND INFORMATION TECHNOLOGY NOTIFICATION
New Delhi, the 25th February, 2021 G.S.R. 139(E).—In exercise of the powers conferred by sub-section (1),clauses (z) and (zg) of sub-section (2) of section 87 of the Information Technology Act, 2000 (21 of 2000), and in supersession of the Information Technology (Intermediaries Guidelines) Rules, 2011, except as respect things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely:—
DUE DILIGENCE BY INTERMEDIARIES AND GRIEVANCE REDRESSAL MECHANISM 3.
(1) Due diligence by an intermediary: An intermediary, including social media intermediary and significant social media intermediary, shall observe the following due diligence while discharging its duties, namely:—
(d) an intermediary, on whose computer resource the information is stored, hosted or published, upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publish any unlawful information, which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation; incitement to an offence relating to the above, or any information which is prohibited under any law for the time being in force:
Provided that any notification made by the Appropriate Government or its agency in relation to any information which is prohibited under any law for the time being in force shall be issued by an authorised agency, as may be notified by the Appropriate Government:
Provided further that if any such information is hosted, stored or published, the intermediary shall remove or disable access to that information, as early as possible, but in no case later than thirty-six hours from the receipt of the court order or on being notified by the Appropriate Government or its agency, as the case may be:
Provided also that the removal or disabling of access to any information, data or communication link within the categories of information specified under this clause, under clause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) by such intermediary, shall not amount to a violation of the conditions of clauses (a) or (b) of sub-section (2) of section 79 of the Act;
(e) the temporary or transient or intermediate storage of information automatically by an intermediary in a computer resource within its control as an intrinsic feature of that computer resource, involving no exercise of any human, automated or algorithmic editorial control for onward transmission or communication to another computer resource shall not amount to hosting, storing or publishing any information referred to under clause (d);
(g) where upon receiving actual knowledge under clause (d), on a voluntary basis on violation of clause (b), or on the basis of grievances received under sub-rule (2), any information has been removed or access to which has been disabled, the intermediary shall, without vitiating the evidence in any manner, preserve such information and associated records for one hundred and eighty days for investigation purposes, or for such longer period as may be required by the court or by Government agencies who are lawfully authorised;
(h) where an intermediary collects information from a user for registration on the computer resource, it shall retain his information for a period of one hundred and eighty days after any cancellation or withdrawal of his registration, as the case may be;
- the intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011;
(j) the intermediary shall, as soon as possible, but not later than seventy two hours of the receipt of an order, provide information under its control or possession, or assistance to the Government agency which is lawfully authorised 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: Provided that any such order shall be in writing stating clearly the purpose of seeking information or assistance, as the case may be;
(k) the intermediary shall not knowingly deploy or install or modify technical configuration of computer resource or become party to any act that may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force: Provided that the intermediary may develop, produce, distribute or employ technological means for the purpose of performing the acts of securing the computer resource and information contained therein;
(l) the intermediary shall report cyber security incidents and share related information with the Indian Computer Emergency Response Team in accordance with the policies and procedures as mentioned in the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013.
(2) Grievance redressal mechanism of intermediary:
- The intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –
- acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;
- receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
- The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual, take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it:
- The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.
SECTION 4. Additional due diligence to be observed by significant social media intermediary.—
(1) In addition to the due diligence observed under rule 3, a significant social media intermediary shall, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, observe the following additional due diligence while discharging its duties, namely:—
- appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and rules made thereunder and shall be liable in any proceedings relating to any relevant third-party information, data or communication link made available or hosted by that intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties under the Act and rules made thereunder:
Provided that no liability under the Act or rules made thereunder may be imposed on such significant social media intermediary without being given an opportunity of being heard.
Explanation.— Chief Compliance Officer´ managerial personnel or such other senior employee of a significant social media intermediary who is resident in India;
- appoint a nodal contact person for 24×7 coordination with law enforcement agencies and officers to ensure compliance to their orders or requisitions made in accordance with the provisions of law or rules made thereunder.
Explanation.— nodal contact person´ of a significant social media intermediary, other than the Chief Compliance Officer, who isresidentin India;
- appoint a Resident Grievance Officer, who shall, subject to clause (b), be responsible for the functions referred to in sub-rule (2) of rule 3.
Explanation.—Resident Grievance Officer´ employee of a significant social media intermediary, who is resident in India;
- publish periodic compliance report every month mentioning the details of complaints received and action taken thereon, and the number of specific communication links or parts of information that the intermediary has removed or disabled access to in pursuance of any proactive monitoring conducted by using automated tools or any other relevant information as may be specified;
(2) A significant social media intermediary providing services primarily in the nature of messaging shall enable the identification of the first originator of the information on its computer resource as may be required by a judicial order passed by a court of competent jurisdiction or an order passed under section 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copy of such information in electronic form:
Provided that an order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or 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:
Provided further that no order shall be passed in cases where other less intrusive means are effective in identifying the originator of the information:
Provided also that in complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users:
Provided also that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within the territory of India shall be deemed to be the first originator of the information for the purpose of this clause.
(3) A significant social media intermediary that provides any service with respect to an information or transmits that information on behalf of another person on its computer resource±
- for direct financial benefit in a manner that increases its visibility or prominence, or targets the receiver of that information; or
- to which it owns a copyright, or has an exclusive license, or in relation with which it has entered into any contract that directly or indirectly restricts the publication or transmission of that information through any means other than those provided through the computer resource of such social media intermediary, shall make that information clearly identifiable to its users as being advertised, marketed, sponsored, owned, or exclusively controlled, as the case may be, or shall make it identifiable as such in an appropriate manner.
(4) A significant social media intermediary shall endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this sub-rule:
Provided that the measures taken by the intermediary under this sub-rule shall be proportionate having regard to the interests of free speech and expression, privacy of users on the computer resource of such intermediary, including interests protected through the appropriate use of technical measures:
Provided further that such intermediary shall implement mechanisms for appropriate human oversight of measures deployed under this sub-rule, including a periodic review of any automated tools deployed by such intermediary:
Provided also that the review of automated tools under this sub-rule shall evaluate the automated tools having regard to the accuracy and fairness of such tools, the propensity of bias and discrimination in such tools and the impact on privacy and security of such tools.
(5) The significant social media intermediary shall have a physical contact address in India published on its website, mobile based application or both, as the case may be, for the purposes of receiving the communication addressed to it.
(6) The significant social media intermediary shall implement an appropriate mechanism for the receipt of complaints under sub-rule (2) of rule 3 and grievances in relation to the violation of provisions under this rule, which shall enable the complainant to track the status of such complaint or grievance by providing a unique ticket number for every complaint or grievance received by such intermediary: Provided that such intermediary shall, to the extent reasonable, provide such complainant with reasons for any action taken or not taken by such intermediary in pursuance of the complaint or grievance received by it.
(7) The significant social media intermediary shall enable users who register for their services from India, or use their services in India, to voluntarily verify their accounts by using any appropriate mechanism, including the active Indian mobile number of such users, and where any user voluntarily verifies their account, such user shall be provided with a demonstrable and visible mark of verification, which shall be visible to all users of the service: Provided that the information received for the purpose of verification under this sub-rule shall not be used for any other purpose, unless the user expressly consents to such use.
(8) Where a significant social media intermediary removes or disables access to any information, data or communication link, under clause (b) of sub-rule (1) of rule 3 on its own accord, such intermediary shall,—
- ensure that prior to the time at which such intermediary removes or disables access, it has provided 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;
- ensure that the user who has created, uploaded, shared, disseminated, or modified information using its services is provided with an adequate and reasonable opportunity to dispute the action being taken by such intermediary and request for the reinstatement of access to such information, data or communication link, which may be decided within a reasonable time;
- ensure that the Resident Grievance Officer of such intermediary maintains appropriate oversight over the mechanism for resolution of any disputes raised by the user under clause (b).
(9) The Ministry may call for such additional information from any significant social media intermediary as it may consider necessary for the purposes of this part.
SECTION 5. Additional due diligence to be observed by an intermediary in relation to news and current affairs content.—In addition to adherence to rules 3 and 4, as may be applicable, an intermediary shall publish, on an appropriate place on its website, mobile based application or both, as the case may be, a clear and concise statement informing publishers of news and current affairs content that in addition to the common terms of service for all users, such publishers shall furnish the details of their user accounts on the services of such intermediary to the Ministry as may be required under rule 18:
Provided that an intermediary may provide such publishers who have provided information under rule 18 with a demonstrable and visible mark of verification as being publishers, which shall be visible to all users of the service.
Explanation.—This rule relates only to news and current affairs content and shall be administered by the Ministry of Information and Broadcasting.
SECTION 6. Notification of other intermediary.—
(1)The Ministry may by order, for reasons to be recorded in writing, require any intermediary, which is not a significant social media intermediary, to comply with all or any of the obligations mentioned under rule 4, if the services of that intermediary permits the publication or transmission of information in a manner that may create a material risk of harm to the sovereignty and integrity of India, security of the State, friendly relations with foreign States or public order.
(2) The assessment of material risk of harm referred to in sub-rule (1) shall be made having regard to the nature of services of such intermediary, and if those services permit,— (a) interaction between users, notwithstanding, whether it is the primary purpose of that intermediary; and (b) the publication or transmission of information to a significant number of other users as would be likely to result in widespread dissemination of such information.
(3) An order under this rule may be issued in relation to a specific part of the computer resources of any website, mobile based application or both, as the case may be, if such specific part is in the nature of an intermediary: Provided that where such order is issued, an entity may be required to comply with all or any of the obligations mentions under rule 4, in relation to the specific part of its computer resource which is in the nature of an intermediary.
SECTION 7. Non-observance of Rules.—Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.
CASE:- The Twitter has not only wasted the given period of three months but this media platform has also started to demonstrate that “the internal policy of the Twitter is more valuable for them in place of the rules and regulations of the Indian Constitution. The Twitter management started to avoid the rules and regulations as prescribed by the aforesaid guidelines and preferred to disobey and violate the same. The behaviour of Twitter management clearly shows that they did not want to give any respect to the Indian law and constitution and they also wanted to run their business arbitrarily in their own manner without following the due process of law as prescribed by the Indian Legislature for the same.
In a statement, IT minister Ravi Shankar Prasad said that Twitter had “deliberately” chosen the path of non-compliance, but stopped short of explicitly saying whether the company was no longer entitled to safe harbour provisions. “There are numerous queries arising as to whether Twitter is entitled to safe harbour provision. However, the simple fact of the matter is that Twitter has failed to comply with the Intermediary Guidelines that came into effect from the 26th of May,” Prasad said.
“Further, Twitter was given multiple opportunities to comply with the same, however it has deliberately chosen the path of noncompliance,” he added.
Result:- When the Twitter failed to follow “The new Intermediary Guidelines and Digital Media Ethics Code”, then a Notice was served by the Concerned authority and provided the stipulated period (as mentioned therein) to comply with the rules and regulations of the guidelines prescribed under section 3, 4 and 5 of the said “The new Intermediary Guidelines and Digital Media Ethics Code”.The Twitter approached the Hon’ble Court by challenging the said Notice and in consequences of the same, the Hon’ble Court was pleased to observe that “The Twitter must follow the guidelines as mentioned in the relevant sections of “The new Intermediary Guidelines and Digital Media Ethics Code”, as the Twitter is not up and above the Constitution of India.
And Now the protection i.e. Exemptions as provided under Section 79 of the Information Technology Act 2000 is not available for the Twitter as the Twitter fails to observe these rules, and hence the provisions of sub-section (1) of section 79 of the Act shall not be applicable to Twitter and the Twitter shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.
CONCLUSION:- Whoever you are, if you are in India i.e. Bharat, you are bound to follow the Constitution of India and all the concerned rules and regulations are applicable upon you. It is your ethical duty and moral responsibility to pay respect towards the constitution of India.
 Wikipedia “Freedom of Speech”