Role and Responsibilities of Intermediaries

under the Information Technology (Intermediary

Guidelines and Digital Media Ethics Code)
Rules, 2021 and as amended further.

| Disha Karamchandani
April 10, 2023
 ❖ Meaning of Intermediaries
❖ Obligations ascribed on the
Intermediaries
❖ Identification of the First
Originator of Information
Overview ❖ Using Automated Tools to Flag
Information
❖ Viewing the IT Rules in light of
Shreya Singhal v. Union of India
 
 ❖ Meaning of OTT
❖ Recent Controversies surrounding
OTT
❖ Release of Rules for OTT
platforms
Overview ❖ Self Classification of Content
❖ Three Level Grievance Redressal
Mechanism
❖ Problems with IT Rules
❖ Our Opinion
 Introduction
 On February 25, 2021, the Ministry of Information, Government of India enacted the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). 

 These Rules have been notified under the Information Technology Act, 2000, which provides for the regulation of
electronic transactions and cybercrime. 

 The IT Rules, 2021 replace the Information Technology (Intermediaries Guidelines) Rules, 2011. 

 The IT Rules, 2021 regulate bodies including the Intermediaries (such as social media platforms and messaging
services), Over the Top platforms (OTT) and news portals, however this presentation limits its scope to analyzing
the regulation of Intermediaries under the said Rules.
 Meaning of Intermediaries
 In simpler terms, Intermediaries are bodies that support the provision of services by another organization rather
than providing direct services itself.

 The have been defined under Section 2 (w) of the Information Technology Act,2000 (IT Act, 2000) as entities that
store or transmit the electronic data or record on behalf of other persons.

 Intermediaries includes telecom service providers, network service providers, internet service providers, web-
hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber
cafes.”

 Examples of intermediaries are messaging applications like Whatsapp, social networking sites like Facebook and
Twitter, search engines like Google etc.

 The IT Rules, 2021 have further divided the intermediaries into two categories-Social Media intermediary (SMI) and
Significant Social Media Intermediary (SSMI), where SMI more than 50 lakh registered users in India will be
considered as SSMI.
 Duties of the Intermediaries

 Display of Privacy Policy and Usage of Personal Data- Intermediaries have to publish the privacy policy and the usage of
personal data or information of users on his website and/or application. This privacy policy should make clear user
cannot exchange information which is derogatory, unethical, defamatory or misleading.

 Information that undermines unity, integrity and sovereignty of the State– The intermediaries will not entertain
information damaging the unity, integrity and sovereignty of the state. Intermediaries have to warn users that in case
such information is transmitted, then it would be removed or their account would be terminated.

 Storing Data as Evidence - Intermediaries have to store records of any information that has been removed or access to
which has been disabled from the platform, for a period of 180 days for investigation purposes. They also have to keep
the records of information of users who have withdrawn or cancelled their registration, for period of 180 days.

 Voluntary User Verification-The Intermediaries have to provide an appropriate mechanism to users who wish to verify
their accounts voluntarily. The verified accounts will be provided with a demonstrable and visible mark of verification.
 Obligations Ascribed on the Intermediaries

 Grievance Redressal Mechanism- The Intermediaries have to publish on their website and/or application, the the name
of the Grievance Officer (“GO”) and his/her contact details as well as mechanism by which a user or a victim may make
a complaint. The Grievance Officer has to acknowledge the complaint within 3 working days and resolve it one month
from the receipt of the complaint.

 Removal of information portraying person in bad light, obscene acts-Within 24 hours, an intermediary has to remove
information on the complaint of a person which portrays such a person in bad light or exposes their private parts or
shows such a person in a sexual act or nudity.

• A complaint for the same can be filed by an individual or any person on his/her behalf.

 Monthly Compliance Report- This requirement is only for SSMI. It has to appoint a Chief Compliance Officer, a Nodal
Contact Person and a Resident Grievance Officer.

• All of these officers should be resident of India.

• SSMI has to publish a Monthly Compliance Report that contains the details of complaints received and action
taken and details of contents removed.
 Identification of First Originator of
Information
 To curb fake new, SSMI has to identify the first originator of information (FIO), if it is required by a court order or
an order as per the Information Technology (Procedure and Safeguards for interception, monitoring and
decryption of information) Rules, 2009.

 Such an order has to be obtained as a last resort, when the Government has no other effective means to identify
the FIO.

 The SSMI has no obligation to disclose the contents of the message while identifying the FIO.

 In case the FIO is outside Indian territory, then the first originator of information within the territory of India will
be considered as the FIO.
 Problems with the Identification of FIO
❖ In order to protect the privacy of users, Intermediaries use end-to-end encryption (“EEE”), as a result of which,
allegedly even the platform is also not aware of the content.

❖ This has been contended by Facebook / WhatsApp in Facebook Inc v. Union of India to justify its impossibility to
track the originator of the message. This matter is sub-judice and the Supreme Court is adjudicating on the issue of
how the intermediaries can trace the originators of a message shared on their respective platforms.

❖ In order to identify the FIO, the encryption will need to be broken, thus compromising with privacy.

❖ Such a provision might be subjected to public criticism in light of the recently recognized and much celebrated
Right to Privacy laid down by the Hon’ble Supreme Court in case of Justice K. S. Puttaswamy v. Union of India.

❖ However the application of the Right to Privacy in the sphere of social media intermediaries is debatable and clarity
on the same is awaited. there is potential for the breach of the fundamental right of speech of Indian citizens.

❖ Another problem is that it will be costly for Intermediaries to identification records of each user of the platform.
 Using Automated Tools to Flag Sensitive
Information
 SSMI have to use technology-based measures like automated tools to identify information that depicts rape, child sexual
abuse or conduct. This provision will help in curbing highly objectionable data on these platforms

 Problem with the use of Automated Tools :

 The underdeveloped nature of AI poses risk to the proper implementation of the provision. For instance,
Facebook had once removed the iconic ‘Napam girl photo’ from its platform after its automated tools had
wrongly adjudged the photograph for containing nudity.
 Automated take down tools often have a problem in understanding the context in which certain content is
shared.
 Coding biases in the development of AI lead to discrimination, overbreadth and a lack of accountability and
transparency.
 It can be contested as to whether AI ought to be allowed to regulate the fundamental right of freedom of
speech and expression of citizens.
 AI tools which are used for filtering content operate with limited efficiency when it comes to regional languages
or languages which are not widely spoken.
 Viewing the IT Rules 2021 in light of Shreya
Singhal v. Union of India
 In the landmark judgment of Shreya Singhal v. Union Of India, a case which rejuvenated the liberty to Speech and expression in
the country, the Hon’ble Supreme Court struck down Section 66A of the IT Act.

 Section 66A provided the punishment for sending “offensive” messages through a computer or any other
communication device like a mobile phone or a tablet.

 The objective was behind the provision was to prevent the misuse of information technology.

 But Section 66A came with extremely wide parameters, which allowed arbitrary interpretation of the provision by
law enforcement agencies.

 The terms used in this section were not defined under the IT Act leading to the misuse of the provision.

 Therefore Section 66A was struck down because the terminologies used were very ambiguous and loose in nature

 It was considered so vague that it was very hard to put up a charge on an accused under this section distinctly.
 Viewing the IT Rules 2021 in light of Shreya
Singhal v. Union of India
❖ The Intermediaries have to warn users through their privacy policy to not publish or share any information that is:
(i) invasive of another's bodily privacy or harassing on the basis of gender; (ii) patently false or misleading but
appearing as a fact; or (iii) false, with the intention of causing injury or to profit.

• Terms like 'harassing on the basis of gender', 'patently false with the intention of causing injury, 'injury', have not
been defined.

❖ On court order, the Intermediaries have to remove an information within 36 hours , if so is desired in the interest
of the sovereignty or security of the State, decency or morality.

• The addition of 'decency' and 'morality'  appears to be intended to take full benefit of Article 19(2) of the
Constitution giving wide powers in the hands of law enforcing agencies.

❖ These loosely worded provisions could pose a hindrance in the implementation of the IT Rules, 202 and could also
be a ground for challenging the provision in light of the Shreya Singhal judgment that struck down Section 66A of
the IT Act because of its vague language.
 Opinion
 While these IT Rules can be appreciated for making a commencement in the direction of making Intermediaries
responsible for the content circulated on their platforms, but the Rules are not detailed enough providing as to
what classifies as objectionable.
 Further these rules possess serious implementational challenges because of the loosely worded language, lack of
technology to identify FIO, underdeveloped AI; and diverse and subjective sensibilities of the users. Absence on
the provision of punishment for not complying with the rules also makes implementation difficult.
 Furthermore, It is to be seen how practical it is for the Intermediaries to identify FIO, in light of end to end
encryption, usage of multiple platform by users to spread information and lack of control over originators of
information by users residing outside India.
 It is also debatable if people would chose curb of fake news and objectionable material at the stake of their
privacy. To protect Privacy in India , a beginning has definitely been made in the Putttaswamy judgment, but a lot
has to be learnt from other jurisdictions like the European Union that came up with the  General Data Protection
Regulation (GDPR) to protect the personal information of people.
 Lastly it will be interesting to witness the interplay between the IT Rules and the Personal Data Protection Bill,
2019 that is in the pipeline.
 
 What are OTT Platforms
 In the recent years increased consumption of content by the Indian audience has resulted in a massive growth in the
number of Over The Top (OTT) Platforms launched in India.

 OTT service is a media service offered directly to viewers via the Internet. OTT bypasses the traditional means of
 cable, broadcast, and satellite television platforms.

 Viewers are able to exercise content on their devices with a mere internet connection.

 Examples of OTT platforms include Netflix, Amazon Prime, Voot, SonyLIv, Voot, Hotstar, MX Player, Zee5, Alt Balaji.
 Recent Controversies surrounding OTT

 The lack of regulations on OTT platforms (unlike TV and Films) resulted in umpteen controversies, with several
shows being dragged into disputes on questions of obscenity, defamation, hurting of religious sentiments, etc.

 The National Commission for Protection of Child Rights directed Netflix to immediately remove certain
"objectionable" scenes involving minors in "Bombay Begums,“.

 Controversy over scenes in "Tandav,“ released on Prime, on a Hindi word meaning "fury," which allegedly insulted
Hindus by portraying the faith's deities in a derogatory manner.

 Criticism of “Mirzapur” and “Patal Lok “on Prime for use of abusive language and depiction of violence.

 Cries to boycott Netflix’s "A Suitable Boy" for showing intimate scenes between a Muslim man and a Hindu woman
against the backdrop of a temple

 MX Player’s “Aashram," faced legal troubles over the controversial portrayal of Hindu saints.
 Release of Rules for OTT Platforms
 Because of these frequent controversies, on February 25, 2021, the MIB, Government of India enacted
the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules). 

 These Rules have been notified under the Information Technology Act, 2000, which provides for the regulation of
electronic transactions and cybercrime. The

 IT Rules replace the Information Technology (Intermediaries Guidelines) Rules, 2011. 

 The IT Rules, 2021 regulate bodies including the Intermediaries (such as social media platforms and messaging
services), OTT platforms and news portals, however this presentation limits its scope to analyzing the regulation
of OTT under the said Rules.

 The Rules have been notified under section 87 of Information Technology Act which empowers the Central
Government to make Rules.
 Self-Classification of Content

 The OTT platforms have to self-classify the content into five age based categories-
• “U” (suitable for all ages),
• U/A 7+ (suitable for person aged 7 years and above),
• U/A 13+ (suitable for persons aged 13 and above),
• U/A 16+ (suitable for persons aged 16 and above)\
• ‘A’ (restricted to adults).

 These content classifications are not novel and have existed as part of the Cinematograph Act 1952 and are also similar
to the rating criteria proposed under the self-regulatory codes released by the Internet and Mobile Association of India.

 OTT Platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable
age verification mechanisms for content classified as “A”.

 OTT platforms have to prominently display the classification rating specific to each programme together with a content
descriptor informing the user about the nature of the content, and advising on viewer description at the beginning of
every programme. It will enable the user to make an informed decision, prior to watching the programme.
 Three Level Grievance Redressal Mechanism

 A three-level Grievance Redressal Mechanism has been established under the Rules with different levels of self-
regulation.

Level-I: Self-regulation by the publishers;

Level-II: Self-regulation by the self-regulating bodies of the publishers;

Level-III: Oversight mechanism.

 [Level I] Self-regulation by the Publisher: Publisher (the OTT platform) will appoint a Grievance Redressal Officer based
in India, who will be responsible for the redressal of grievances. He will have to take decision on complains in 15 days.

 [Level II] Self-Regulatory Body: There may be one or more self-regulatory bodies of publishers. Such a body will be
headed by a retired judge of the Supreme Court or a High Court or independent eminent person. It will have maximum
six members. Such a body will have to register with the MIB and it will oversee the adherence by OTT to the Code of
Ethics. It will also address grievances in 15 days that have not be been resolved by Level I.
 Three Level Grievance Redressal Mechanism

 [Level III] Oversight Mechanism: MIB will formulate an oversight mechanism. It will publish a charter for self-
regulating bodies, including Codes of Practices. It will establish an Inter-Departmental Committee for hearing
grievances.

Problems associated with the Grievance Redressal Mechanism

 More power has been provided to the Third Level i.e. the government. The registration of the self-regulatory
body is subject to the MIB’s satisfaction , which shows that the control lies with the government.

 The inter-department committee at level three has the power to hear complaints referred to it by the MIB, thus
skipping the first two levels of self-regulation and taking away their powers.

 Placing such greater powers in the hands of government reduces the scope of powers of OTT platforms and self
regulatory authorities.
 Problems associated with the IT Rules
 The IT Rules do not provide any grounds as to what type of content has to be removed. Because of the lack of
clear guidelines, there exists a possibility of misuse of the powers by the authorities to curb the creativity of OTT
platforms.

 Arbitrary use of powers by the authorities raises concerns over OTT platforms having Fundamental Right to
Freedom of Speech and Expression under Article 19 of the Constitution.

 The IT Rules do not provide for specific grounds on which grievances can be made. Given the subjective nature
of the content and diverse sensibilities of viewers, there are likely to be a multitude of complaints.

 The Grievance Redressal Mechanism does not provide for a balance of power between the three levels and
places wide powers with the Third Level.

 The IT Rules pose implementation challenges because nothing has been provided as to what shall be punishment
for OTT platforms in case the fail to follow the IT Rules.
 Reducing OTT to TV Standards?
 The IT rules feature a Code of Ethics, which states that all content would be judged against existing laws such as
the Press Council Act, 1978 and Programme Code under section 5 of the Cable Television Networks Regulation
Act, 1995, (TV Code) besides other relevant laws. 

 The TV Code states that no programme should be carried in the cable service that offends good taste or decency,
or contains criticism of friendly countries or contains an attack on religions or communities or visuals or words
contemptuous of religious groups or that promotes communal attitudes.

 OTT platforms have been an escape for content creators / film makers/ TV production houses to make content
that could not have been aired on TV/Cinema, thus allowing creativity.

 But an overly restrictive regime might render scope of creativity in OTT similar to that in TV/Films.
 Long term Impact on Content Creators

 Given the diversity and subjective sensitiveness n in India, OTT platforms will get a plethora of grievances from different
viewers with varied social sensibilities . Accordingly there will be demand for different types of content and the OTT
platforms will have to work on their “on-demand” service models from the perspective of a wide audience base.

 In the past, all kinds of content has continued to be created despite the classifications or rating mechanisms
takedowns due to grievances. Such films/content could not be aired without removing the controversial parts but
the same were available to the audience on websites working illegally. So, the Overly restrictive regime in the OTT
sphere as well might result in content piracy.

 In India the demand for foreign content has also increased. Netflix and Prime provide a plethora of content made
outside India. Because of lack of clarity on jurisdictional limits in the digital sphere, it is to be seen if foreign content
on OTT platforms will have to be curtailed.

 Big foreign OTT platforms such as Netflix have made an advent in the Indian market and have invested in it. Such
a curb on content autonomy may lead them to take a step back.