New Intermediary Guidelines

In December 2018, Government of India came up with a draft Intermediary guidelines under Section 79 of ITA 2000/8.

Some of the articles written at that time are available below in this link

Most of the points discussed at that time (Refer article Meity Needs to take assistance of techno legal experts on Section 79)are relevant even today.

Now the Government has come up with a new guideline with effect from today. We shall only focus on discussing some new thoughts that are included in this guideline.

The 2018 version of the guideline was  prompted by the issues surrounding WhatsApp being used for spreading fake news and social disharmony. At that time Government wanted to ensure that the origin of messages in WhatsApp should be traceable. However as usual there was an opposition from the “Cyber Nay-Sayers” who shouted that the guidelines were unconstitutional etc and the MeitY developed a cold feet and kept the guideline under wraps.

Now that the Twitter saga has forced the hands of the Government, Meity has gathered some courage and also took the assistance of the I & B Ministry to draft a new set of guidelines.  Some of these guidelines will also be part of the Personal Data Protection Act when passed.

The new issue that has been taken up now is the regulation of the OTT platform where serials and small screen films carrying content which is obscene, spreading disharmony in the country etc were being published without even a cursory censorship to which the cinematographic films are subjected to.

Hence this notification combines a regulation of the Digital media which could claim to be an “Intermediary” under ITA 2000/8 when it comes to avoiding liabilities. However, as Naavi.org has explained from time to time, many of the service providers cannot be considered as “Intermediaries” as defined under the ITA 2000 since they have ownership of the content.

One of the points the new regulation focusses is the creation of a three level regulation, first at the self regulatory level of the platform, then at the industry level and later at the Government level.

The notification is clear that the social media intermediary shall respond both to the Court order as well as the order from the Government for removal of content taking care that the directions of the Government shall be issued only for reasons stated in Article 19(2) of the Constitution as reasonable exceptions to the freedom of speech.

Hence the directions cannot be questioned in the Court of law as unconstitutional though it cannot be ruled out that the habitual PIL agents would file an objection in the Supreme Court stating that the Government may misuse the powers.

What is notable is the suggestion for a Central Grievance portal besides an industry level regulatory body like the Press Council. The intermediaries are also required to voluntarily submit a half yearly statements of grievances received and resolved at their end.

One of the provisions included in the PDPB 2019 namely providing an opportunity to the registered users of the significant social data intermediaries to verify themselves. Any digital news publisher with over 5 lakh subscribers or 50 lakh followers of the services will be required to notify some information about the organization to the Ministry of I &B.

Naavi.org welcomes the guidelines. What is missing however in the guideline is the penalty for not adhering to the guidelines. It is presumed that not being compliant with the guideline could lead to blocking of the service.

More details of the requirements are contained in the notification, a copy of which is available here.

Naavi

P.S: Notification on the threshold limit of 50 lakh registered users for a significant social media intermediary was issued separately as S.O. 942(E) (Dated 25th February 2021)

 

 

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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