Protected Harbour Precept And The Data Expertise (Middleman Tips And Digital Media Ethics Code) Guidelines (2021) – Media, Telecoms, IT, Leisure
Information Technology Safe Harbor Principle and Rules (Intermediary Guidelines and Digital Media Code of Ethics) (2021)
July 20, 2021
King, Stubb & Kasiva
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The newly notified rules for information technology (guidelines for intermediaries and code of ethics for digital media) 2021 (IT rules 2021) 1 have caused major shocks to the digital technology industry worldwide and in India since they replaced the previous decade-old Information Technology Guidelines (Intermediary Guidelines 2011) (IT rules 2011). The IT rules 2021 put several new obligations for social media and digital streaming platforms in the foreground. At this point, it’s important to note that these new rules are mandatory for social media and digital streaming platforms if they want to claim “intermediary safe haven” status – which is basically a safeguard from that for those they operate Third party content to be held liable for their platform. The IT rules 2021 have undeniably brought about a drastic change in the requirements compared to the IT rules 2011, which required minimal compliance for the use of Safe Harbor protection.
The need to expand Safe Harbor was brought to light in 2008 when the Indian Criminal Code website official was charged with an obscene video uploaded to their website by a third party. After this incident, the Information Technology Act 2000 was amended in 2008 (Change 2008 2008), adding that intermediaries, who only act as platforms for the transmission of information, will not be held liable for any liability arising from the fact that a crime is committed on their platform without their knowledge. In addition, the 2008 amendment expanded the definition of “intermediary” to include online payment sites, search engines, internet service providers, etc. It is important to note here that such intermediaries were relieved of any liability under “any law” after the 2008 amendment to the limited criminal offense protection previously granted under the 2000 Information Technology Act.
While the 2011 IT rules governed all “intermediaries” with no difference in terms of their user base or the content hosted on their platform, the 2021 IT rules are divided into two parts according to their applicability. Part II governs intermediaries and Part III applies to digital media, including news and current affairs publishers or online content publishers as follows:
- Social media broker
- Major social media broker> 50 lakh registered Indian users-
- Additional due diligence duties to be followed by these intermediaries include: (i) the appointment of a Chief Compliance Officer to ensure compliance with IT law and rules, (ii) the appointment of an India-based Complaints Officer, and (iii) the Publication of a monthly compliance report.
- Editors of news and current affairs including news aggregators;
- Publisher of curated online content covering all online streaming platforms including over-the-top (‘OTT’) platforms.
Safe Harbor Principle (Section 79 of the Information Technology Act 2000)
Section 79 of the Information Technology Act 2000 introduced the Safe Harbor Immunity Clause, which protected an intermediary from being held liable for third-party content on its platform – provided the intermediary complied with the due diligence required by the central government. In cases where the intermediary did not follow the due diligence required by the central government, he was held liable for the actions of the third party, even if it was done without the intermediary’s knowledge. This did not change much after the 2008 amendment, as intermediaries were allowed to continue to apply the safe harbor principle in order to protect themselves against being held responsible for actions of an external third party that were carried out without the intermediary’s knowledge.
In fact, after the amendment of 2008, it was further established that the question of whether an intermediary can claim a safe haven essentially depends on two factors, namely actual knowledge of the illegal act and compliance with the prescribed duties of care. The rules were then left intact for a decade until recently.
Mediator and liability
The main function of an intermediary is to receive, store and transmit the information received. An intermediary does not play a role in the creation of such information. The users (i.e. third parties) are those who create the content or information that is received by the intermediary and transmitted to other users. The intermediary merely acts as a medium between the content creator and the consumers / viewers / users. An intermediary’s liability for the content posted on the platform by a third-party user is therefore unreasonable due to the huge amounts of data that are exchanged (between users), which cannot be constantly tracked, and may also violate the freedom of expression of the users because of possible reasons arbitrary censorship of online content. This is also problematic because it puts the decision-making power over the limits of freedom of expression and expression in the hands of private companies.
In order to avoid excessive law enforcement, the “Safe Harbor” principle explained above becomes valuable for such institutions. This is because these intermediaries are exempt from any liability unless they are aware of the illegal content stored and transmitted on their platform and have not done so within a reasonable period of time. The safe harbor principle not only protects these companies from arbitrary sanctions, but also prevents the fundamental rights of users from being decided by private, foreign companies. In this day and age, the Safe Harbor Principle has gradually become irrelevant as different jurisdictions on different continents have put in place tough circumvention laws, to hold companies accountable for failing to regulate user data and to impose excessive self-regulatory obligations on such intermediaries. For example, multiple court hearings trick Facebook into taking responsibility for influencing the elections of different countries by allowing misinformation on its platform by users or bots. After years of indifference, this is a pivotal moment in government enforced social media regulation and has sparked a major debate about the extent to which a private company needs to regulate conversations on its platform, especially when it comes to politically significant events such as rioting or elections.
As we mentioned in a previous post, intermediaries who fail to comply with the updated 2021 legislation will lose their Safe Harbor protection. From this it follows that any person can take legal action against such intermediaries for illegal content by third parties that violates the rules and they are therefore made solely liable. We recently witnessed the judgment of the Delhi High Court, in which the Delhi High Court failed to grant temporary protection to a leading social media platform and also stated that the state is free to take action against them under the relevant laws of the country seize. This implies that they could be held liable for criminal offenses under not one but several laws, including the Information Technology Act 2000 and India’s Criminal Code 1860.
Legal challenges to the IT rules 2021
- The Delhi High Court issued a notice on a petition submitted by Quint Digital Media Ltd. was submitted, which owns the online news portal ‘The Quint’, which questions the constitutional validity of the IT rules 2021, insofar as it regulates the publishers of news and current content. The petition has been linked to an earlier petition tabled by the editor of The Wire against the same rules
- The Kerala Supreme Court has notified the center of a petition from Live Law to this effect. The High Court also issued an injunction restricting coercive action under Part 3 of the Rules against Editor-in-Chief MA Rashid and Managing Editor, Manu Sebastian of Live Law, stating that they were editors of legal reports and legal literature
- WhatsApp has also filed a written petition contesting the requirements in the Information Technology Rules (Intermediary Guidelines and Digital Media Code of Ethics) 2021 that private messaging intermediaries should “identify the first originator of the information” in India on their end -to- end-of-date encrypted intelligence services (commonly referred to as “traceability”) by order of a government or court. They respectfully argue that this requirement forces them to break the end-to-end data encryption policy for their messaging service, and thus the underlying data protection principles – and that doing so violates the fundamental rights to privacy and freedom of expression of hundreds of millions of people Citizens who use WhatsApp to communicate privately and securely
Recently we are already witnessing the struggle between the Indian central government and Twitter – India for “compliance”, as mentioned in the IT rules 2021, but since the IT rules 2021 are self-explanatory, non-compliance would automatically mean that the intermediaries could do not enforce the safe harbor principle and therefore
would be responsible for all actions of the third party even if this happened without the knowledge of the intermediary. The penalties for non-compliance are very strict and therefore the intermediaries should comply with the IT rules 2021 in order to protect themselves against penalties and to avoid the loss of the virtual guardrail that represents the safe harbor principle. With this in mind, however, the future of IT rules in 2021 is still on a very slippery road and there could be further challenges to the validity of the same by various intermediaries in order to maintain their autonomy and control.
1.Available at https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf
2nd WP (c) 3659/2021
3rd WP (c) 6272/2021
The content of this article is intended to provide general guidance on the subject. You should seek expert advice regarding your specific circumstances.
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