Anticipating misuse - can it be a reason to shun the new IT Rules ?

Anticipating misuse - can it be a reason to shun the new IT Rules ?

After much awaited curiosity, Ministry of electronics and information technology issued notification GSR No.139(E)  towards the implementation of Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. Obviously the same has been issued in suppression of the existed Rules 2011.

It is a long pending complaint that annoying contents in the  social media with an intention to defame and to harass the persons on the receiving end are not able to restrict even through legal proceedings, fruitfully. The in-house reporting mechanism of the social media giants are not preventing the assailants going scot free. Not everyone in our country is in a position to get orders from competent court or from appropriate government or agency to invoke the provisions of due diligence by intermediary. The article 19- freedom of speech and expression, a fundamental right guaranteed by the constitution of India is not unfettered by the law of the land. Similarly the concern by certain sects that the rules may be misused deliberately to make a large number of complaints so as to overwhelm the grievance redressal mechanisms created by social media platforms need only to be termed as misplaced and exaggerated. 

What is Due diligence 

Due diligence need to be mandatorily observed by the social media intermediary and significant social media intermediary while discharging certain duties. The intermediary shall prominently publish on its website, mobile based application or both about the rules and regulations and privacy policy and user agreement. Those rules and regulations shall strictly restrict the user from publishing or sharing any information if it is defamatory, obscene, pornographic, paedophilic,  libellious and other offences which are inconsistent with or contrary to the laws of the land. The prohibited activities includes patent, trademark, copyright violations etc. Intentional communication of misleading information also come under the bar. Needless to say, any over act challenging the unity integrity and security of the nation will also come under the scanner.

Grievance Redressal Mechanism

If this rules are properly complied by the social media giants, gone are the days for indefinite search for grievance officers and contact details to whom the victim may make a complaint against violation of any of the provisions of this rule. The rules cast a mandatory duty upon the grievance officer to acknowledge the complaint within 24 hours and dispose off such complaint within a period of 15 days from its receipt. Furthermore the intermediary shall within 24 hours from the receipt of a complaint made by an individual or any person on his behalf in relation to any content which is prima-facie in the nature of any material which exposes the private area of such individual, full or partial nudity or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in electronic form including artificial morphed images, take all reasonable measures to remove or disable access to such content. 

The social media intermediaries are liable to 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, where he fails to ensure that such intermediary observes due diligence while discharging its duties under the act and rules made thereunder.

A Nodal contact person for full-time coordination with the law enforcement agencies is also mandatory. Resident grievance officer- an employee of a significant social media intermediary who is rresident in India need also to be appointed. The rules also mandate the intermediaries to 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. 

First originator and prosecution 

The identification of the first originator of the information connected with an offence is always a dark area for the investigating agencies, provided no cooperation is is there from the part of intermediaries. New rules cast a duty on the intermediaries to enable the identification of the first originator of the information on its computer resource. This is the area in which challenges are raised over the right of privacy, which is a fundamental right as of now. The proviso to safeguard the privacy, by adding a clause of non requirement of disclosure of any other information relating to the first of generator or any information relating to its other users has evoked a mixed response only. It is also to be noted that if the first originator of any information 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. 

Regulatory mechanisms

The grievance regulatory mechanism as per the new rules is of three levels. It includes self regulating mechanism level 1 and level 2 and and oversight mechanism as level 3. It is no doubt that there must be a proper mechanism to curb the intentional harassment and defamation and other crimes through social media. However a balanced mechanism between the pillars of criminal overt act and freedom of free speech, by upholding India's democratic credentials is the need of the hour.

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