IT Rules: Government Issues FAQs; Says Norms Consistent With Right to Freedom of Speech, Expression

 The government on Monday said the new IT rules are consistent with the right to freedom of speech and expression guaranteed by the Constitution, and do not place additional obligations on users.
Releasing a set of Frequently Asked Questions (FAQs) around the intermediary guidelines, IT ministry said the rules have a clear focus on protecting online privacy of individuals, and that even with regard to identification of the first originator of messages, safeguards are in place to ensure that privacy of users is not violated.

Overall, the FAQs seek to address queries that Internet and social media users may have about scope of the new rules, major changes it brings over past provisions, how the rules enhance safety of women and children, and due diligence to be done by an intermediary, among others.

In one of the questions, the ministry said the rules do not infringe on right to free speech and expression.

“The new IT rules, 2021 have been framed consistent with these rights. The rules place no additional obligations on users and do not contain any sort of penalties applicable on users,” it said.

Further, the ministry said the rules define ”social media intermediary” as an intermediary which primarily or solely enables online interaction between two or more users and allows them to “create, upload, share, disseminate, modify or access information using its services”.

Typically, any intermediary whose primary purpose is enabling commercial or business-oriented transactions, providing access to Internet or search-engine services, e-mail service or online storage service, etc. will not qualify as a social media intermediary, the ministry said in the 20-page document.

To qualify as a social media intermediary, enabling of online interactions should be the primary or sole purpose of the intermediary, it explained.

“Therefore, typically, an entity which has some other primary purpose, but only incidentally enables online interactions, may not be considered as a social media intermediary,” it said.

The scope of enabling online interactions would extend to facilitating “socialisation/social networking, including the ability of users to increase their reach and following, within the platform via specific features like follow/subscribe etc.”.

According to the ministry, offering opportunity to interact with unknown persons or users, and ability of enabling virality of content by facilitation of sharing would also amount to enabling online interaction, it said.

Separately, the ministry will come out with the Standard Operating Procedure (SOP) around the IT rules and intermediary norms that would contain details of the appropriate agencies who will have the authority to issue takedown notices to platforms.

The IT Rules, 2021 are meant to benefit general users, who are using any intermediary platform, it said, adding that the norms provide for increased safety of netizens and ensure accountability of platforms by way of a robust grievance redressal mechanism.

“The rules, by providing these reasonable mechanisms and remedies, strive to ensure that social media platforms remain a safe space for all users, free from cyber threats, harassment and unlawful content,” it said.

As per IT rules, the chief compliance officer and the nodal contact person cannot be the same person whereas the roles of the nodal contact person and the resident grievance officer may be performed by the same person.

“However, keeping in view the functional requirements of the nodal contact person and the resident grievance officer, it is desirable that SSMI (Significant Social Media Intermediary) appoints separate persons for the two roles,” it said.

A parent SSMI can appoint common officers across its products/services. But the contact details to approach these officers are required to be clearly mentioned on each of those product and service platforms separately.

To a question on whether detection of first originator of the message could compromise end-to-end encryption, the ministry clarified that the intent of the rule is not to break or weaken the encryption but merely to obtain the registration details of the first Indian originator of the message.

A typical principle of detection is based on the ”hash value” of the unencrypted message, wherein identical messages will result into a common hash irrespective of the encryption used by a messaging platform.

“How this hash will be generated or stored needs to be decided by the concerned SSMI, and SSMI are free to come up with alternative technological solutions to implement this rule,” it said.

It is pertinent to mention here that India enforced new IT intermediary rules earlier this year, aiming to bring greater accountability for big tech companies, including Twitter and Facebook.

The rules require social media platforms to remove any content flagged by authorities within 36 hours and set up a robust complaint redressal mechanism with an officer being based in the country. Social media companies are required to take down posts depicting nudity or morphed photos within 24 hours of receiving a complaint.

Significant social media companies – those with over 50 lakh users – also have to publish a monthly compliance report disclosing details of complaints received and action taken as also details of contents removed proactively.

“Internet for all of the good things represents the ability to deliver good governance, ability for last person in democracy to reach out to government.

“… but it also represents significant growth in things we refer to as user harm and criminality and so policy making has to address, grow the good, and address the bad in a manner that is transparent and effective,” Minister of State for Electronics and IT Rajeev Chandrasekhar said while releasing the FAQs.

As the cyberspace is evolving, so is the nature of “good and bad” on cyberspace. The government’s policy making is aimed at ensuring that interest of users are protected by way of greater accountability of platforms, he said.

“Internet must always remain open… openness means it is bereft from not just state and government influence but is also free from dominant big tech influence and one of ways to normalise that is to create among bigger platforms a culture of rules-based accountability to their users,” he said.

He also said that the biggest stakeholders of Internet are millions of Indians who are using it and nearly 80 crore Indians are online.

“We appreciate the government’s efforts in bringing more clarity on the 2021 IT rules. We look forward to studying the FAQs” a Meta spokesperson said. Facebook recently rebranded itself as Meta.

When contacted, Google said the company is reviewing the FAQs document.