Key Features of Guidelines issued for Intermediary and Digital Media

The Ministry of Electronics and Information Technology (“Ministry”) on 25th February 2021 notified the Information Technology (Guideline for Intermediaries and Digital Media Ethics Code) Rules, 2021 (“Rules”) to regulate digital media, social media companies and over the top (“OTT”) platforms. The Rules also provides provisions pertaining to publishers of news through digital media (“Digital News”).

Due Diligence by Intermediaries

The Rules lays down the grounds of due diligence to be observed by the intermediaries. The due diligence of the content would require the intermediaries to observe inter-alia prominently publish on its websites, whether such intermediary is a mobile-based application, website or both; its terms of use and privacy policy shall list dos and don’ts that the users of such intermediary are allowed in line with the provisions prescribed under the Rules.

Introduction of Code of Ethics

The Code of Ethics introduced by the Rules shall apply to both the publishers of OCC and Intermediaries. It imposes certain responsibility on the intermediary to exercise due caution and shall take into consideration the following factors when deciding to exhibit and/or publish any content on its platform:

• Content which affects the sovereignty and integrity of India;
• Content which threatens endangers or jeopardizes the security of the State;
• Content that is detrimental to India's friendly relations with foreign countries.
• India's multi-racial and multi-religious context.
• Activities, beliefs, practices, or views of any racial or religious group in India.

 Set-Up of Grievance Redressal Mechanism

The Rules establish a three-tier grievance redressal mechanism for Digital News and OTT platforms. The Government has formulated an online Grievance Portal that would be directly monitored and addressed by the central regulators by way of a three-tier redressal mechanism as detailed hereinbelow.

I. Level I- Self Regulation by the Publisher and Grievance Redressal Officer

Any person having any grievance regarding the content published by the Publisher shall raise its grievance directly to the Publisher regarding the same.

The Rules bound the Publisher to address and communicate its decision to the complainant within a period of 15 (fifteen) days from the date of receipt of such complaint.

II. Level II- Self-regulation by the self-regulating bodies of Publisher

A Self-Regulating Body (“Body”) will be formulated by the association of Publishers to address any appeals or grievance not addressed by the Grievance Officer of the Publisher, along with overseeing the functioning of the Code of Ethics as observed by all the Publishers, amongst other functions.

Furthermore, the Body is also entrusted with the power to refer the complaint to the oversight mechanism under Level III where the members of the Body are of the opinion that an action has to be taken under Section 69A of the IT Act.

III. Level III- An oversight by the Central Government

As and when a complainant has been referred to the oversight mechanism by the central government, it shall have the power to perform the following functions:

• Develop a grievance portal for prompt disposal of the grievances and to publish a charter, including a code of practices for self-regulating bodies.
• Establish an inter-department committee (“Committee”) to refer to the decision of the Body.
• Hearing complaints arising out of grievances in respect of decisions taken at Level I or II, suo-motu and the complaints referred to it by Ministry.

 Self-Classification of Content

Further, the Ministry also lays down guidelines to regulate certain content that may be inappropriate for children, and thereby establishes a framework to monitor that certain scenes that may include nudity or violence ae not available for children below a certain age.