Information Technology Rules, 2021

Intermediary Guidelines and Digital Media Ethics Code
Intermediary Guidelines and Digital Media Ethics Code
	Long title Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ;
Citation	via The Gazette of India
Commenced	25 February 2021
Introduced by	Ministry of Electronics and Information Technology
	Status: In force

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is secondary or subordinate legislation that suppresses India's Intermediary Guidelines Rules 2011.[lower-alpha 1][1][2] The 2021 rules have stemmed from section 87 of the Information Technology Act, 2000 and are a combination of the draft Intermediaries Rules, 2018 and the OTT Regulation and Code of Ethics for Digital Media.[3][4][5]

The Central Government of India along with the Ministry of Electronics and Information Technology (MeitY) and the Ministry of Information and Broadcasting (MIB) have coordinated in the development of the rules.[6]

Intermediaries had until 25 May 2021 to comply with the rules.[7]

Code of Ethics and Guidelines

Regulation – OTT platform

Before 2022, There was no regulation body for over-the-top media services (OTT) in India.[8] Last year in February, the Indian Government Introduce intermediate guidelines for social media and digital ethics code 2021 to regulate OTT platforms.[9] These rules include - information, self-regulation, and oversight mechanism.

Code of ethics[10][11][12][13][14][15][16]
OTT adult rated shows would be follow same ethics code and guidelines, when they will show sexual scenes, abusive language, and women representation in its shows, just like censor board does, When he censor and certified the A certificate (18+) movie for theaters.
Even with adult rating, nudity are not allowed (If in a show's scene, an actress is naked but she has covered her body with her hand or something, this would also be considered as nudity, and will be highly prohibited and punishable offence as per Indecent Representation of Women (Prohibition) Act).
The time duration for showing kissing or sexual scenes in show/web series, should not be longer than two minutes, otherwise that scene or that show will be considered as Softcore Pornography, which is highly prohibited and punishable offence.
Portraying" sexual relations between family (like- fathers in law, brother in law, sister in law etc.) or insulting religious or cultural sentiments is highly prohibited and will be punishable offence as per Section 295A of the Indian Penal Code and Indecent Representation of Women (Prohibition) Act.
Any content who can damage India's sovereignty, and foreign relations of India isn't allowed.

Note: According to Code of ethics, Nudity, erotica, pornography and showing or touching the women's private body part is highly prohibited and will be punishable offense, under section 293, IT Act 67-B and Code of ethics 2021.

Portraying" sexual relations between family (like- fathers in law, brother in law, sister in law etc.) or insulting religious or cultural sentiments is highly prohibited and will be punishable offence as per Section 295A of the Indian Penal Code,Indecent Representation of Women (Prohibition) Act.[17]

Intermediary guidelines[10][11][12][13][14]
OTT would be classified the content in terms of age, based on the Cinematograph Act 1952.
OTT platform would be appoint grievance officer,
Officer will oversee and ensure that the publishers follow the Code of Ethics.
OTT platforms needs to have a self-regulating body, headed by a retired supreme court or high court judge.
An oversight mechanism will be established, headed by Mib itself, where immediate judgment needs to be passed.

History

During Monsoon session of the Parliament in 2018 a motion on “Misuse of social media platforms and spreading of fake news” was admitted. The Minister of Electronics and Information Technology accordingly made a detailed statement of the "resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law". MeitY then prepared the draft Information Technology (Intermediary Guidelines) Rules 2018 to replace the 2011 rules.[18] The Information Technology Act, 2000 provided that intermediaries are protected liabilities in some cases.[19] The draft 2018 Rules sought to elaborate the liabilities and responsibilities of the intermediaries in a better way.[19] Further the draft Rules have been made "in order to prevent spreading of fake news, curb obscene information on the internet, prevent misuse of social-media platforms and to provide security to the users."[19] The move followed a notice issued to WhatsApp in July 2018, warning it against helping to spread fake news and look on as a "mute spectator".[20]

In relation to the Prajawala case, on 11 December 2018, the Supreme Court of India observed that "the Government of India may frame the necessary Guidelines / SOP and implement them within two weeks so as to eliminate child pornography, rape and gang rape imageries, videos and sites in content hosting platforms and other applications." Further a parliamentary report laid in 2020 studied the effect of pornography on children.[21][22]

On 5 January 2019 a government open house was held to discuss the Rules.[23] Further, ten days were given for counter comments, until 28 January.[24] On 21 September 2019 the Centre informed the Madras High Court bench under Justice M Sathyanarayanan that deliberations on the Draft Rules 2018 had been completed.[25] Facebook wrote a plea to transfer the matter to the Supreme Court.[25][26]

MeitY had invited comments on proposed amendments early in 2019. The amendments were seen by many to "overstep the aforesaid intention sparking concerns of violating free speech and privacy rights of individuals."[27] It is seen that "the guidelines suffer with excessive delegation of powers and shift the burden of responsibility of identification of unlawful content from a government/ judiciary to intermediaries."[28] A total of 171 comments were received by MeitY; all of the comments were published for counter comments.[29][30] On 21 October 2019, MeitY asked the court for three months’ time for finalisation of the Intermediary Rules, 2018.[29]

References

Notes

The IT Act elaborates that intermediaries must observe due diligence while discharging their duties, and also observe such other guidelines as prescribed by the Central Government. Accordingly, the Information Technology (Intermediaries Guidelines) Rules, 2011 came into being.

Citations

"Indian govt announces new social media(IT) rules, 2021". thehindu.com.
Foundation, Internet Freedom (27 February 2021). "Explainer: Why India's new rules for social media, news sites are anti-democratic, unconstitutional". Scroll.in. Retrieved 2 March 2021.
"Latest Draft Intermediary Rules: Fixing big tech, by breaking our digital rights?". Internet Freedom Foundation. 25 February 2021. Retrieved 2 March 2021.
The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018. Ministry of Electronics and Information Technology, Government of India.
"Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021". SFLC.in. 27 February 2021. Retrieved 9 March 2021.
Dalmia, Vijay Pal (4 March 2021). "Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021". www.mondaq.com. Retrieved 5 March 2021.
"WhatsApp moves Delhi High Court against IT Intermediary Rules 2021 mandating it to trace first originator of information". Bar and Bench. 26 May 2021. Retrieved 26 May 2021.
"Why Netflix's First Original Series in India Is Already Facing a Court Case". Time.com.
"What is ott platform and which regulation govern it". Wap.business-Standard.com.
"Sex Interrupted: What India's New Censorship Rules Mean For OTT Platforms". Silver Screen India.
"Think beyond sex and abuse': Netflix, Amazon Prime, other OTT platforms stare at new challenge". businesstoday.in.
"Prakash Jha: It's Not That We'll Not Show Sex, Crime But It Must Be Our Responsibility That We Don't Glorify Them". Outlook India.
"Violence & Nudity: The Dark Underbelly Of OTT In India". inc42.com.
"New Rules for OTT Platforms: Regulation or restriction?". financialexpress.com.
CCG (17 February 2022). "Guest Post: The 2021 Intermediary Guidelines and their impact on OTT Platforms". The CCG Blog. Retrieved 25 December 2022.
"The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021". PRS Legislative Research. Retrieved 25 December 2022.
"Mirzapur in trouble for showing sex relations between father in law". india.com.
"Comments / suggestions invited on Draft of "The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018". Ministry of Electronics and Information Technology, Government of India.
"Analysis Of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 - Media, Telecoms, IT, Entertainment - India". www.mondaq.com. Retrieved 4 January 2020.
Sonkar, Siddharth; Tarafder, Agnidipto (26 December 2018). "Unclear understanding of 'unlawful content' may end up curbing free speech". Business Standard India. Retrieved 4 January 2020.
"Government notifies Information Technology (IntermediaryGuidelines and Digital Media Ethics Code) Rules 2021". Press Information Bureau, Government of India. Ministry of Electronics & IT. 25 February 2021. Retrieved 9 March 2021.{{cite web}}: CS1 maint: others (link)
"Prajwala Letter Suo Moto Writ Petition (CRL) No(s). 3/2015". Indian Kanoon.
"Government to hold open house on intermediary guidelines on January 5; publish comments online". The Economic Times. 2 January 2019. Retrieved 2 January 2020.
"Legal 'hole' in online draft". Telegraph India. Retrieved 4 January 2020.
S, Mohamed Imranullah (21 September 2019). "Draft rules to regulate social media ready: Government". The Hindu. ISSN 0971-751X. Retrieved 4 January 2020.
T., Prashant Reddy (28 December 2018). "Liability, Not Encryption, Is What India's New Intermediary Regulations Are Trying to Fix". The Wire. Retrieved 4 January 2020. Author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy, New Delhi.
Kittane, Purushotham (15 March 2019). "Under India's New Intermediary Rules, Fundamental Rights Take Backstage". OHRH, Faculty of Law, University of Oxford. Retrieved 4 January 2020.
Consumer Unity and Trust Society (2019) "Counter Comments On The Submissions Received By Ministry Of Electronics And Information Technology On ‘The Information Technology Intermediary Guidelines (Amendment) Rules, 2018’"
"Stricter social media regulations in India to be finalised in three months: MeitY- Technology News, Firstpost". Firstpost Tech2. 21 October 2019. Retrieved 4 January 2020.
Basu, Arindrajit (19 February 2019). "Resurrecting the marketplace of ideas". The Hindu @businessline. Retrieved 4 January 2020.