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IT Rules, 2021 Background

25th February 2021 marked the launch of India’s new IT Rules, 2021 also known as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as IT Rules, 2021). The Rules as a whole apply to various key digital players, such as “Social Media Intermediaries”, “Publisher of News and Current Affairs” and “Publisher of Online Curated Content”. They aim to regulate the above mentioned digital players, and also improve consumer redressal in the online space. The new Rules have been termed by some as draconian and have been claimed to lead India into a new age of digital authoritarianism. They have been challenged by most of the applicants under it. Some of the key challenges of the Rules are tech giants (WhatsApp, Twitter), digital media platforms (LiveLaw, The Wire) and OTT Platforms (Amazon Prime).  Their challenges list various grounds, such as the Rules going beyond the scope of their parent act i.e. the Information Technology Act, 2000 (hereinafter referred to as IT Act, 2000), violating the Fundamental Rights of Article 14 (right to equality), 19 (1) (a) (freedom of speech and expression), 19 (1) (g) (right to trade) and 21 (right to privacy). The applicants fear that the Rules are granting far too much power to the government, without the necessary checks and balance mechanism in place, and thus, risking the fundamental rights of all those who are applicable under it.

While there are numerous challenges on various grounds, our focus will be on “Social Media Intermediaries”, the scope of the same and identify broadly who comes under its purview. Our second focus will be on the term “registered users” under the IT Rules 2021, and analyzing its shortcomings and issues.

Social Media Intermediaries

Rule 2 (w) defines the term “Social Media Intermediaries” (hereinafter referred to as SMI) 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”.

Rule 2 (v) further defines “Significant Social Media Intermediaries” (hereinafter referred to as SSMI) as “a social media intermediary having  a number of registered users in India above such threshold as notified by the Central Government”.

The Central government has set the threshold at 50 lakhs registered users i.e. any SMI which has more than 50 lakhs registered users is an SSMI. Part II of the Rules, “Due diligence by intermediaries and grievance redressal mechanism” list out the duties to be followed by any SMI. Further, Rule 4 under the same part i.e. “Additional due diligence to be observed by significant social media intermediary”, lists out some further duties which are only applicable on SSMIs. Non-compliance with any of the obligations listed will potentially lead to loss of the safe harbour clause granted to intermediaries. Safe harbour refers to Section 79 of the IT Act, 2000, according to which no intermediary will be legally liable for any third party information, data, or communication link made available or hosted on its platform, subject to certain conditions. Thus, loss of this protection will enable everyone to sue the intermediary for any content posted on their platform, which was not the case before. This makes Section 79 extremely essential for the functioning of any intermediary and indirectly drastically improves the significance of the IT Rules 2021.

While from a common man perspective, one would usually expect SMI’s to only include social media platforms such as Instagram, WhatsApp, Twitter etc., the definition has a much wider application than what you would expect. It appears that due to the insertion of the words “online interaction” in Rule 2 (w), the definition’s scope of applicability has drastically increased. The only regulations present are the terms “primarily or solely”, which are vague and unclear. It is prima facie apparent that the Rule’s initial scope was meant to be limited to social media, however, due to the vague terminology coupled with lack of clarifications from the executive’s side, the Rules are potentially applicable to any digital space which provides for interaction. Some unusual and unexpected examples, with two special mentions in the end are –

  1. Electronic Mail – known by its more famous name “email”. With around 122,500,453,020 emails sent every single hour back in 2015, it is one of the most widely used digital services used in India. Email is officially defined as electronic messages distributed via one user to one or more using a network. Technically speaking, it is a form of “online interaction” and thus could come under the scope of SMI. Some famous email services are Gmail, Outlook etc.
  2. Cloud Storage Providers – also known as managed service providers, albeit a strange entry, is also potentially covered by the definition of SMI. These services allow clients and customers to lease storage capacity and place & retain their data in the said storage. These service providers also sometimes allow for online interaction. Some famous cloud storage providers are Google Drive, One Drive etc.
  3. Online Multiplayer Games – a norm for online games in today’s age is to have some sort of mode of communication, such as a text box to facilitate communication amongst players for increasing coordination and teamwork. Players can interact with each other via such modes, and thus this too will count as “online interaction”. Some noteworthy examples are PUBG, Among Us etc.
  4. Comment Sections or Chat boxes – often sites, not meant for communication allow their visitors and customers to communicate with each other via a chat-box or even a product review facility. This includes sites like shopping platforms, digital media sites etc. In today’s age, sites without such facilities are considered to be an exception. Some famous examples are Flipkart, Swiggy etc.

Collaborative Services

These are services that greatly help in increasing a team’s coordination and help them in accomplishing common goals & objectives.  They range from video conferencing platforms, common doc sharers etc. The key to these services is enabling communication via technology, and this inevitably ends up inside the broad definition of “online interaction”. Examples include Office 365, Google Docs, etc.

Author(s) Name: Kabir Singh (OP Jindal Global University, Sonipat)