Factsheet

Intermediary Guidelines & Digital Media Ethics Code 2021

(As of 14th July 2021)

Key Contents
1. Introduction .................................................................................................................................... 1
2. What are the New IT Rules? .......................................................................................................... 2
3. Who do the Rules Concern? ........................................................................................................... 2
4. What the rules seek to do? ............................................................................................................ 2
5. Timeline .......................................................................................................................................... 4
6. Consequences of Non-Compliance ................................................................................................ 4
7. What’s the Debate about? ............................................................................................................. 4
7.1. Key Legal Provisions and Concerns ......................................................................................... 4
7.2. Snapshot of Legal Challenges .................................................................................................. 6
8. Stance of Government of India ...................................................................................................... 8
9. Position of Industry Bodies ............................................................................................................ 9
10. Position of Other Associations ....................................................................................................... 9
11. What do consumers want? (NICI Vox Pop/Survey) ....................................................................... 9
12. Conclusion ..................................................................................................................................... 10

1. Introduction
Internet ecosystem has been progressively contributing to the GDP of India. A study
conducted by ICRIER in 2016 to assess the impact of internet on economic growth across 19
states in India found that with a 10% increase in internet subscribers, the states’ per capita
GDP witnessed a 2.4% growth. In other words, internet is no more a mere communication
tool but also a catalyst for economic growth, social change and efficient public service
delivery.

One of the most important factors to the prominence of internet in the lives of people is the
trust between users, businesses and state. In recent times, however, internet landscape is
being redefined by debates around privacy and security, amongst other things.
The largest survey on User Privacy Online conducted in 2019 by Internet Society (included
respondents from India amongst other countries) found that three-quarters of the
respondents were concerned about their online privacy. Particularly for India, the share of
concerned respondents was as high as 92%. In this context, discussions on Information

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Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have
become relevant. This document presents the key arguments on the new IT rules.

2. What are the New IT Rules?

In a move to regulate digitized content, the Ministry of Electronics and Information
Technology (MeitY) notified Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, also known as 'new IT rules', on 25th February 2021. The rules
stem from Central Government’s power to prescribe rules or guidelines under Section 79(2)
read with Section 87(2)(z) and 87(2)(zg) of the IT Act, 2000.
(Section 79(2) specifies intermediaries shall have to comply with guidelines released by the
Central Government and Section 87(2) empowers the Central Government to make
rules/guidelines for intermediaries).

3. Who do the Rules Concern?

The key entities to be affected with the implementation of the Rules are:
1. Online Curated Content Providers (OCCPs) Eg. Netflix, Hotstar, etc
2. Digital News Media Platforms Eg. The Wire, The Quint, etc
3. Social Media Intermediaries Eg. Twitter, Facebook, etc
Since, consumers are the very reason for concerned stakeholders to exist; rules also directly
affect final consumers and also consumers of the platforms, such as content creators in the
case of OCCPs.

4. What do the rules seek to do?

The New IT Rules regulate digitized content over Social Media Intermediaries (SMIs), Digital
News Media and Online Curated Content Providers (OCCPs). The rules were framed by
MeitY in collaboration with Ministry for Information and Broadcasting (MIB) and are divided
into 3 parts – Part I provides preliminary information about the rules, Part II discusses the
due diligence requirements and grievance redressal mechanism (GRM) for Intermediaries,
and Part III discusses the same for Publishers of Digital Media [includes Digital News Media
Platforms and Online Curated Content Providers (OCCPs)]. While MeitY is concerned with
Part II of the Rules, MIB is concerned with Part III of the Rules.
The key provisions of the rules are as follows:

Social Media Intermediaries (SMIs) Publishers of Digital Media

The SMIs are bifurcated into two Publisher shall classify Online Curated
categories - SMIs and Significant SMIs. Content (OCC) into categories based on
Significant SMIs (SSMIs) are intermediaries context, theme, tone, impact, and target
with more than 50 lakh users. audience.
SMIs need to appoint a Grievance Officer Publisher needs to appoint a Grievance
who shall acknowledge a complaint Officer who shall acknowledge a complaint
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received within 24 hours and resolve it received within 24 hours and resolve it
within 15 days. within 15 days.
When requested by the Government, the The rules mandate a 3-tier appellate
SMIs are required to remove/disable Grievance Redressal Mechanism (GRM):
access to any information which is: (a)Level I – Self-regulation by Grievance
• prohibited under any law in relation to Officer
the interest of the sovereignty and (b)Level II – Self-regulation by Self-
integrity of India; Regulating Body of the Publishers, and
• security of the State; (c)Level III – Oversight Mechanism by
• friendly relations with foreign States; Inter-Departmental Committee (IDC)
• public order; (Self-Regulating Body will be headed by a
• decency or morality; retired judge of Supreme Court/High Court
• in relation to contempt of court; or eminent person in the field of media,
• defamation; broadcasting, entertainment, child rights,
• incitement to an offence relating to human rights or such other relevant field.
the above; or Also, there will be 6 members of the body
• any information which is prohibited who are eminent persons in the
under any law for the time being in aforementioned fields)
force (IDC will be established by Central
Government and include representatives
from Ministry of Women and Child
Development, Law and Justice, Home
Affairs, External Affairs, Defence, MeitY,
MIB, and such other Ministries and
Organisations)
When a complaint is made by an Any authorised officer, after approval from
individual, SMIs shall remove such content Secretary, MIB, can direct publisher to take
within 24 hours if the content: down, modify or limit access to content or
• exposes private area of the individual; information
• shows the individual in full/partial
Publisher has to publish a monthly report
nudity;
of the complaints received and actions
• shows/depicts the individual in any
taken therein.
sexual act or conduct; or
• impersonates such individual

Additional Diligence for Significant SMIs (SSMIs)

SSMIs need to appoint Chief Compliance Officer and Nodal Officer
Chief Compliance Officer can be held criminally liable in case of non-compliance with rules
Publish a monthly report of the complaints received and actions taken therein
SSMIs providing messaging services may be directed to trace first originator of any
information
SSMIs can use automated tools to identify information/content which is violative of the
rules or is similar to information previously removed from the intermediary platform
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5. Timeline
Prior to the present rules, draft intermediary guidelines were released by MeitY in 2018.
After 2 years, MeitY notified new IT rules on 25th February 2021. Starting 25th February
2021, a 90-day window was provided to SMIs as well as publishers of digital media for
compliance with the rules.
In case of SMIs, details of the Chief Compliance Officer, Grievance Officer and Nodal Officer
needed to be furnished for compliance. In case of publishers of digital media, information
pertaining to website, social media platform accounts, entity, grievance redressal
mechanism and contact information in India needed to be furnished for compliance. The 90-
day compliance window ended on 25th May 2021.

6. Consequences of Non-Compliance
For SMIs, failure to comply with the rules would result in loss of ‘Safe Harbour’ status
granted under Section 79 of the IT Act, 2000. On the other hand, for Publishers of Digital
Media, an entity can be held liable for contravening any law in force for non-compliance.
(Safe Harbour status ensures that intermediaries shall not be liable for any third-party data,
information, or communication link hosted on the platform. Hence, taking away of Safe
Harbour status will imply that the intermediaries can be held liable for third-party content on
their platforms.)

7. What’s the Debate about?

7.1. Key Legal Provisions and Concerns
The key legal provisions as well as concerns raised by various stakeholders while contesting
the new IT rules are as follows:
1. Article 14 of the Constitution – The article enshrines Right to Equality as a
Fundamental Right which acts as a guarantee against arbitrariness. The Supreme
Court defines arbitrariness as something done in an ‘unreasonable manner’.
Arbitrariness in any legislative or executive function results into negation of equality
and hence, is violative of Right to Equality. Legal challenges to the rules state that the
rules are arbitrary, hence, violative of Article 14. For instance, it is contested that the
rules arbitrarily differentiate between intermediaries by categorizing them as SSMIs
and SMIs.
2. Article 19(1)(a) of the Constitution – The article enshrines the Right to Freedom of
Speech and Expression as a Fundamental Right. It has been argued in some petitions
that the rules are violative of Article 19(1)(a) as they provide for taking down online
content on subjective and broadly phrased grounds. Some of the petitions also
contest that the restrictions laid under the new rules are not reasonable as required
by Article 19(2) of the Constitution.

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3. Article 19(1)(g) of the Constitution – The article enshrines the Right to Freedom of
Profession as a Fundamental Right which is subject to reasonable restrictions under
Article 19(6) of the Constitution. Some petitioners argue that the rules levy
unreasonable restrictions on the conduct of businesses/professions and hence,
violate Article 19(1)(g). For instance, Whatsapp has argued that by enabling
traceability of the first originator of any information, the company is prevented from
offering end-to-end encryption to its users.
4. Article 21 of the Constitution – The article enshrines Right to Life and Liberty as a
Fundamental Right which also includes the Right to Privacy. Legal challenges to the
rules argue that traceability provision undermines the end-to-end encryption offered
by messaging platforms and, in turn, undermines the Right to Privacy of users.
5. Doctrine of Ultra Vires – The doctrine of Ultra Vires states that an authority is
entitled to exercise only as much power as it is legally authorised to exercise. In case
the authority acts beyond the power vested in it, such an act shall be void. It is
pointed out that the purview of IT Act, from which the IT rules emanate, is only
limited to intermediaries and government entities. However, the rules also seek to
control publishers of digital media and thus, regulate beyond the power vested in it
by the parent act. Hence, it is contested that the Rules are Ultra Vires of IT Act, 2000,
the parent statute.
6. Shreya Singhal v. Union of India – The 2015 Supreme Court judgement struck down
such provisions of the IT Act, 2000 which lay down vague grounds for taking down
online content. Some petitioners argue that the New IT Rules are in contravention of
this precedent as they seek to regulate content based on vague grounds, for
instance, ‘decency’.
7. International Human Rights Law – As per the UN Special Rapporteurs letter to
Central Government, the Rules are not in conformity with the Right to Privacy
(Article 17) and the Freedom of Opinion and Expression (Article 19) laid in the
International Covenant on Civil and Political Rights (ICCPR) ratified by India. Thus, it is
pointed out that the rules are not in conformity with International Human Rights
Law.
8. Ease of Doing Business – The New IT Rules lay down complex due diligence
requirements for SMIs and Publishers of Digital Media. Several industry bodies have
highlighted that the increased compliance requirements will have a severe impact on
the ease of doing business of the concerned market players.
9. Market Access and Trade – As per the National Trade Estimate Report of 2021 by
United States Trade Representative, some provisions of the rules are likely to have a
detrimental impact on digital trade between US and India. For instance, the report
points out that usage of automated tools for monitoring online content by SMIs
encourages policing of non-IP user generated data which undermines the services
provided by internet platform.

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7.2. Snapshot of Legal Challenges
S. No. Petitioner Key Provision(s)/Principle(s) Court
1. Whatsapp1, an • Challenged the ‘Traceability’ Delhi High Court
intermediary provision
• Doctrine of Ultra Vires
• Article 19(1)(a) of the
Constitution
• Article 21 of the Constitution
2. Foundation for • Doctrine of Ultra Vires Delhi High Court
Independent • Contravention of Shreya Singhal
Journalism2, parent judgement
company of two digital
news media portals –
The Wire and The
News Minute
3. Quint Digital Media, a • Doctrine of Ultra Vires Delhi High Court
digital news portal • Article 14 of the Constitution
(Classification of online news
media distinct from print news
media is irrational)
• Article 19(1)(a) of the
Constitution
• Article 19(1)(g) of the
Constitution
• Contravention of Shreya Singhal
judgement
4. Pravda Media • Doctrine of Ultra Vires Delhi High Court
Foundation3, parent • Article 14 of the Constitution
company of the digital • Article 19(1)(a) of the
news portal AltNews Constitution
• Article 19(1)(g) of the
Constitution
5. Sanjay Kumar Singh4, • Article 19(2) of the Constitution Delhi High Court
a practising advocate as unreasonable restrictions are
laid on Freedom of Speech and
Expression
6. Truth Pro Foundation • Doctrine of Ultra Vires Karnataka High

1
https://www.forbesindia.com/media/supplement_pdf/WhatsApp_Petition.pdf
2
https://www.medianama.com/wp-content/uploads/2021/03/Foundation-for-independent-journalism-
petition-Delhi-HC-redacted.pdf
3
https://www.forbesindia.com/media/supplement_pdf/Petition-286.pdf
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https://www.medianama.com/wp-content/uploads/2021/03/Social-Media-Rules-Petition-Sanjay-K-Singh.pdf
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 India, a not-for-profit • Contravention of Shreya Singhal Court
company which runs judgement
the Kannada digital
news portal -
Pratidhvani
7. LiveLaw Media5, a •
Doctrine of Ultra Vires Kerala High
digital legal news •
Article 14 of the Constitution Court
portal •
Article 19(1)(a) of the
Constitution
• Article 19(1)(g) of the
Constitution
• Article 21 of the Constitution
• Contravention of Shreya Singhal
judgement
8. Praveen • Doctrine of Ultra Vires Kerala High
Arimbrathodiyil6, a • Article 14 of the Constitution Court
free-and-open-source (Rules fail to draw reasonable
(FOSS) programmer classification as they do not
classify between proprietary
software-based intermediaries
(like Facebook, WhatsApp, etc)
and free and open-source
software (FOSS) community)
• Article 19(1)(a) of the
Constitution
• Article 19(1)(g) of the
Constitution
• Article 21 of the Constitution
• Contravention of Shreya Singhal
judgement
9. T. M. Krishna, a • Doctrine of Ultra Vires Madras High
prominent Carnatic • Article 14 of the Constitution Court
music vocalist, cultural • Article 19(1)(a) of the
critic, and writer Constitution
• Article 19(1)(g) of the
Constitution
• Article 21 of the Constitution
10. Digital News The grounds for the challenge are: Madras High
Publishers Association • Doctrine of Ultra Vires Court
(DNPA) • Article 14 of the Constitution (The
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https://www.livelaw.in/pdf_upload/wpc-live-law-media-pvt-ltd-vs-union-of-indiakerhc-390340.pdf
6
https://sflc.in/praveen-arimbrathodiyil-vs-union-india-sflcin-assists-challenging-part-ii-intermediary-rules-
2021
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 (comprising legacy rules create an unreasonable
media houses like distinction between physical
Times of India, India newspapers and their online
Today, NDTV, Indian versions)
Express, Dainik • Article 19(1)(a) of the
Bhaskar, Dainik Jagran Constitution
and Amar Ujala) 7 • Article 19(1)(g) of the
Constitution
11. Sayanti Sengupta, • Article 14 of the Constitution Calcutta High
filed PIL as an internet • Article 19(1)(a) of the Court
user Constitution
• Article 21 of the Constitution
12. Nikhil Wagle , a 8
• Article 14 of the Constitution Bombay High
journalist • Article 19(1)(a) of the Court
Constitution
• Article 19(1)(g) of the
Constitution
• Article 21 of the Constitution
9
13. The Leaflet , a digital • Doctrine of Ultra Vires Bombay High
news portal • Article 14 of the Constitution Court
• Article 19(1)(a) of the
Constitution
• Article 19(1)(g) of the
Constitution
14. News Broadcasters • Article 19(1)(a) of the Kerala High
Association10 Constitution Court
• Article 19(1)(g) of the
Constitution

8. Stance of Government of India

The Union Government backed the Rules stating the following:
1. Reasonable Restrictions – The users’ Right to Privacy comes with reasonable
restrictions. While seeking information of the first originator under the traceability
provision, the information can only be sought after an order from a competent
court.11

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https://thewire.in/government/invoking-free-speech-violations-over-nw-it-rules-big-media-finally-goes-to-
court
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https://www.livelaw.in/news-updates/journalist-nikhil-wagle-challenges-it-rules-in-bombay-high-court-
176669?infinitescroll=1
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https://www.theleaflet.in/the-leaflet-challenges-constitutionality-of-new-it-rules-at-bombay-high-court/
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https://drive.google.com/file/d/1F8iHCxdCBiEAvbpMwMebyA8Z7otf4TO5/view
11
https://indianexpress.com/article/technology/tech-news-technology/whatsapp-vs-indian-government-over-
new-social-media-rules-7-points-to-note-7332708/
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2. Accountability and Transparency – The rules not only introduce transparency in the
decisions taken by intermediaries (eg. taking down of content) but also, establish the
accountability of digital platforms in case of infringement of users’ rights.12
3. Empowerment of Users – The rules strive to uphold the safety and security of users
by preventing misuse of digital platforms. With the establishment of grievance
redressal mechanisms under the rules, the users of digital platforms are empowered
to address their grievances.13

9. Position of Industry Bodies14

Confederation of Indian Industry (CII), Federation of Indian Chambers of Commerce &
Industry (FICCI), US India Business Council (USIBC), US India Strategic Partnership Forum
(USISPF) and Associated Chambers of Commerce & Industry of India (ASSOCHAM)
highlighted that implementation of the Rules in its current form may have a detrimental
effect on ease of doing business. In addition to the aforementioned industry bodies, the
association of digital news media organisations – DigiPub News India Foundation (DigiPub)
also wrote to the Union Government asking to repeal the said Rules.

10. Position of Other Associations

Apart from industry bodies, following bodies wrote to the Union Government on the Rules:
• Asia Internet Coalition (AIC) – The AIC suggested extending the compliance window
under the New IT Rules by 6 to 8 months.
• Joint Statement by 14 Organisations (includes organisations such as Access Now, US-
based Centre for Democracy & Technology, Article 19, etc)15 – In a joint statement,
14 organisations urged the Union Government to review the New IT Rules and
undertake broader participatory consultations on the Rules.
• Editors Guild of India – The association wrote to Prime Minister highlighting that the
rules affect Freedom of Press.

11. What do Consumers Say? (NICI and PEN Media Foundation Vox
Pop/Survey)
NICI and PEN Media Foundation conducted a vox pop/survey on ‘Content Regulation,
Consumer Choice and Creative Expression’ in May-June 2021 to get an insight into
consumers’ viewpoint on online content regulation. The vox pop/survey collected 406

12
https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749
13
https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749
14
https://timesofindia.indiatimes.com/business/india-business/5-industry-bodies-had-objected-to-it-
rules/articleshow/83766500.cms#:~:text=The%20new%20Information%20Technology%20(Intermediary,reven
ge%20porn%2C%20among%20other%20things.
15
https://indianexpress.com/article/business/economy/tech-policy-civil-groups-ask-govt-to-withdraw-new-it-
rules-7355134/; and https://www.accessnow.org/end-the-wave-of-digital-censorship-in-india/
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responses from all age groups spread across 24 states and over 65 cities. The findings of the
vox pop/survey reveal the following:
• Majority of consumers are willing to rely on industry-based or online platform-based
regulatory mechanism to resolve their grievances.
• Majority of consumers are confident to make prudent decisions regarding suitable
content to be watched.
• Majority of consumers do not seek government’s active role in regulation and
censorship of online content.

12. Conclusion
It is evident that the rules have faced a plethora of litigation as well as resistance from
affected entities including digital news media publishers, industry bodies, etc. The NICI and
Pen Media vox pop/survey also indicates that consumers do not prefer government playing
an active role in monitoring and regulating online content.

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 ANNEXURE
Vox Pop/Survey Report on
Content Regulation, Consumer Choice and Creative Expression

1. About the Vox Pop/Survey

Recently, the Ministry for Electronics and Information Technology (MeitY) notified
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
on 25th February 2021. As new regulations are implemented to govern online platforms
(includes Social Media Intermediaries, Digital News Media Platforms and Online Curated
Content Providers (OCCPs)) and the content thereon, it is imperative to get an insight into
consumers’ view on this issue.
Accordingly, New Indian Consumer Initiative (NICI), along with PEN Media Foundation,
conducted a vox pop/survey on regulation of digital content vis a vis impact on consumer
choice and creative expression. The vox pop/survey was conducted during 10th May – 15th
June 2021. This report is based on the responses of 406 respondents, 52% of which are
males and 46% are females.
Of the total respondents, 37% aged between 19-25 years, 23% aged above 40 years, 18%
aged between 31-40 years, 16% aged between 26-30 years and the remaining below 18
years. The vox pop/survey was designed in English as well as Hindi to target urban, semi-
urban and rural areas. Responses of the vox pop/survey came from 24 states and 65 cities.
For detailed vox pop/survey, please refer to Annexure 1.
2. About the Vox Pop/Survey Questions
The vox pop/survey contained 14 close ended questions of which 4 pertained to respondent
details (age, city, state and gender). The remaining 10 questions sought consumers’
perspective on censorship, choice, creativity, existing regulations, grievance redressal
mechanisms, regulation by government and awareness about the new IT rules.
3. What does the Vox Pop/Survey reveal?
The vox pop/survey reveals that 98.2% respondents engage in some or the other kind of
online activity (Q5) of which majority of the respondents use it for basic needs such as work
(70% responses), education (70% responses) and reading news (82% responses). More than
educational and work purposes, respondents consume online content for entertainment
purposes such as listening to music (83% responses), watching TV/Web series or movies
(83% responses) and using social media (90% responses).

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Majority of the respondents believe that consumption of online content has not only
provided them an opportunity to choose from a wider variety of content (77% responses),
but also higher quality of content (62% responses). Thus, the availability of content, in terms
of quality as well as variety, has improved (Q7). Responses also highlight that access has
improved as content can now easily be consumed from anywhere and any device (69%
responses) (Q7). Also, the affordability of content has enhanced as respondents state that
content is made available at cheaper rates on internet (50% responses). Thus, responses to
Q7 reflect that with the increase in consumption of online content, the Right to Choice of a
consumer has strengthened in various aspects – availability, access and affordability of
services.
While the government will play a key role in online content regulation under the new IT
rules, the responses indicate that only a few consumers are supportive of government’s
active role in regulating/censoring online content. Only a small part of respondents favored
removal/blocking of online content by government (19% responses) (Q11) as laid under the
new IT rules. Instead, majority responses suggested that content should only be taken down
when the judiciary asks for it, for instance, in case of illegal content, pirated content, etc
(62% responses) (Q12).
With regards to online news content, only a small share of respondents expressed that
government must review complaints made by consumers to digital news media platforms
(33% responses) and government should continuously monitor content (28% responses)
(Q10). Further, only a small share of respondents want government to monitor and decide
suitable online content for consumers (19% responses) (Q12).
In the vox pop/survey, majority responses suggest that with the advent of internet content,
creativity has enhanced in the country (77% responses). The respondents do not favor pre-
censorship of online content similar to theatrical releases (26% responses) (Q11).
Additionally, majority of the respondents (40% responses) expressed dissatisfaction with
existing censorship framework such as pre-censorship of theatrical releases done by CBFC
(Q9). This indicates that consumers are not confident about the existing censorship
framework regulating conventional content.
On the other hand, the vox pop/survey highlights that majority of the respondents are
willing to rely on industry-based grievance redressal mechanisms. About 46% of the
respondents supported redressal mechanism(s) which allow a user to raise complaints
directly to producer/platform of the content (Q11 & Q12). Likewise, majority of the
respondents supported that news organizations should set and enforce minimum standards
for online news content (61% responses) (Q10). Also, 49% of the respondents stated that
they will not watch content which they do not like or find objectionable (Q11). Respondents
further expressed that government should merely facilitate adequate information of the
content to enable consumers to choose suitable online content for themselves (49%
responses) (Q12).
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The vox pop/survey points out that majority is not aware of the new IT rules notified by
MeitY (58% responses) (Q13). Also, majority of the responses either think that the rules will
have a negative impact on consumer choice (29% responses) or do not understand how
these rules impact their choices as a consumer (37% responses). Thus, this indicates the low
level of consumer engagement with the new rules.
4. Conclusion

• The rise of internet usage and internet content has strengthened consumer’s Right
to Choice by improvising availability, access and affordability of content.
• Consumers are willing to rely on industry-based or online platform-based regulatory
mechanism to resolve their grievances.
• Consumers are confident to make prudent decisions regarding suitable content to be
watched.
• Majority of consumers do not seek government’s active role in regulation and
censorship of online content.

Please View Annexure Below

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 ANNEXURE 1

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