From Harbour to Hardships - Understanding the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 Part II

This is in continuation of the series analysing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“2021 Rules”) and their impact. In the first part, we traced the evolution of intermediary liability and the key changes brought about by the 2021 Rules.

In this part, we attempt to identify the implications of the 2021 Rules on intermediaries, mainly focussing on the consequences of non-compliance which could entail criminal liability, and aspects relevant to investigative authorities.

Consequences of non-compliance of the 2021 Rules

For intermediaries, a failure to observe the 2021 Rules and comply with the due diligence requirements under Part II thereof may disentitle them from claiming safe harbour under Section 79 of the Information Technology Act, 2000 (“IT Act”). Consequently, the intermediary may become liable for offences under various laws including the IT Act and the Indian Penal Code, 1860 (“IPC”), as the case may be.

For instance, if an intermediary fails to furnish information required by a law enforcement agency, or fails to block public access to information when so directed, the IT Act prescribes that such offences are punishable with imprisonment of a term, which may extend up to seven years along with a fine.[1] Additionally, provisions of the IPC ranging from criminal conspiracy[2], sale of obscene books, etc.[3], deliberate and malicious acts intended to outrage religious feelings[4] to criminal defamation[5] and in some cases criminal breach of trust[6] and cheating[7], may also be attracted, as observed in cases involving intermediaries.

Considering the broad nature and extent of compliances prescribed under the 2021 Rules, that impose a higher threshold of diligence upon intermediaries and more particularly Significant Social Media Intermediaries (“SSMIs”), an immediate effect could be an increase in the instances of non-compliance of the 2021 Rules. This could divest the intermediaries of the safe harbour under the IT Act, thereby possibly exposing them, at the very least, to the risk of a higher number of criminal allegations.

As regards digital media entities, the 2021 Rules specify that they will be held liable under any law contravened by them, irrespective of adherence to the Code of Ethics prescribed under the 2021 Rules.[8]  This becomes especially relevant in the present day since the threat of attracting criminal allegations by digital media platforms has become all the more prevalent, with instances of complaints or FIRs being registered against content hosted on video-sharing and OTT platforms in the recent past.[9]

Interestingly, the 2021 Rules itself do not specify penal consequences for non-compliance by the digital media entities. Rather, the 2021 Rules empower the self-regulating body or the Ministry of Information and Broadcasting (on the recommendations of the Inter-Departmental Committee) to, inter alia warn, censure, admonish a publisher, require apology, delete or modify content to prevent incitement to a cognisable offence and issue orders for blocking of content under Section 69A of the Act.[10]

Taking notice of the same, the Supreme Court in a recent order observed that “a perusal of the Rules indicate that the Rules are more and more in the form of guidelines and have no effective mechanism for either screening or taking appropriate action for those who violates the guidelines”.[11]

Compliance with takedown orders

Another important aspect concerning compliance with takedown orders[12] is the obligation to not store or host any unlawful information (which is defined rather broadly)[13] upon receiving actual knowledge in the form of a court order or on being notified by the government or its agency, and to further ‘remove or disable access’ within 36 hours from the receipt of such a court order or notification by the government or its agency. While issuing a takedown order, the court may direct an intermediary to disable or de-index unlawful content globally.[14] Further, if an intermediary fails to comply with the takedown orders issued by a court,  the officers in charge of its affairs may become liable for prosecution.[15] Interestingly, however, it is not explicitly specified in the 2021 Rules that the notification of takedown from the government or its agency has to be in writing, in the absence of which there may be some potential for misuse.

The 2021 Rules also impose an obligation to preserve information and associated records of information that has been removed, for a period of 180 days for the purpose of investigation, or a longer period if required by a court or a government agency. Pertinently, this condition also applies in cases where the information has been removed based on grievances received under the prescribed grievance redressal mechanism of intermediaries.[16]

Identification of first originator

Significantly for SSMIs, an additional obligation is imposed to enable the identification of the first originator of information, if required by a judicial order passed under Section 69 of the IT Act and the rules thereunder.[17] While the 2021 Rules clarify that such an order shall be passed for prevention, detection, investigation, prosecution or punishment of ‘serious’ offences, which are punishable with imprisonment for a term of not less than five years, a direct implication of this is the possibility of compromising the end-to-end encryption of the messages that may be provided by the intermediary.

It is also interesting to note in this regard that in case the first originator of any information is located outside India, the first originator of the information within India shall be deemed to be the first originator of the information.

Another aspect that is of relevance for SSMIs is that the 2021 Rules encourage deployment of technology-based measures, including automated tools or other mechanisms, which at present appear to be mainly for identifying sexually explicit content. However, this aspect entails careful consideration of various legal and ethical issues when being implemented practically.

Achieving a fine balance

At first glance, the 2021 Rules cast a wide net over the various intermediaries and digital media platforms and seek to achieve several objectives with an intent to regulate the online space. The significance of intermediaries, and especially SSMIs, in the present day and age cannot be overstated, as online spaces are a ubiquitous and relevant part of society.

In terms of the scope of the present article, it remains to be tested whether all the due diligence obligations imposed on intermediaries are practically achievable, and also whether the penal consequences associated with non-compliance of the 2021 Rules are commensurate with the offences an intermediary may be charged with. Added to this is the aspect that while the 2021 Rules appear to augment the ability of law enforcement agencies to access information from intermediaries, whether sufficient safeguards can be exercised to prevent overreach or abuse.

Separately, it is yet to be seen how the government or its agencies utilise the takedown provisions or how the grievance redressal mechanisms introduced under the 2021 Rules are practically implemented. The discourse on regulation of digital media entities is a separate discussion altogether.

While the 2021 Rules are under challenge before various high courts,[18] another important question, that falls for consideration would be the effect they may ultimately have on user engagement and online discourse, especially from free speech and privacy perspective, where a fine balance is necessary to be maintained.

[1] Section 69 and 69A, IT Act.

[2] Section 120B, IPC.

[3] Sections 292 and 293, IPC.

[4] Section 295A, IPC.

[5] Section 499, IPC.

[6] Section 406, 408, IPC.

[7] Section 415, 420, IPC.

[8] Rule 9(2), 2021 Rules.

[9] Aparna Purohit v State of UP, 2021 SCC OnLine All 179.

[10] Rule 12(4), 2021 Rules.

[11] Supra note 9 (order dated March 5, 2021).

[12] Rule 3(d), 2021 Rules.

[13] “…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.”

[14] X v. Union of India, W.P.(Crl.) 1082/2020 (decided by Delhi High Court on April 20, 2021).

[15] Id. at paragraph 93; Section 85, IT Act.

[16] Rule 3(2), 2021 Rules.

[17] Rule 4(2), 2021 Rules.

[18] Pravin Arimbrathodiyil v. Union of India, WP (C) No. 9647 of 2021 (Kerala High Court); Foundation for Indian Journalism and Ors. v. Union of India, WP (C) 3125/2021 (Delhi High Court).