Is government stepping into the shoes of lawmakers?

IT INTERMEDIARY (GUIDELINE) RULES 2021

Udayan Hazarika

(The writer can be reached at udayanhazarika@hotmail.com)

Government of India has fi-nally notified the draft rules under 'Information and Technology Act-2000' in the same manner and style as it had notified various other Acts, Rules or Policies without caring to discuss the same with the stakeholders or those who offered views. The draft rules containing guidelines for the intermediaries as required under the Section 79 of the IT Act 2000 were formulated more than two years back and thereafter hanged in the site inviting views. Government as usual in a hurry in bringing out the rules without paying much attention to the views offered by various players in the field some of whom are also enacting the role of intermediaries.

The present rules are framed in supersession of the earlier set of Rules framed as guidelines in the year 2011. This set of rules covers two additional aspects namely i) it lays down guidelines to be observed by the intermediaries and ii) the procedures and safeguards for blocking for access by the public.

By these rules, it appears that the Government has overstepped its jurisdiction and entered into the territory of law makers. While framing these rules, on many occasions the Government has exceeded its power of framing a delegated legislation.

For example, while the Act is confined to the definition of intermediary, the present rules enhance its scope by extending the meaning to include 'social media intermediary' and 'significant social media intermediary'. By definition, these two terms have broadened the scope of the Act which without prior amendment of the Act cannot be given force.

Another notable point is that – the Part III of the rules is totally a new addition to the rules which have not been covered under the Act of 2000. The present rules were framed under the provisions of section 87 (2) (g) and (zg) which have scope within the meaning of intermediaries not the 'publishers' as appears in the Part-III. All these have made the rules subject to juridical scrutiny. The part III of the Rules however is outside the purview of present discussion.

Let us now examine the new parameter that the new rules have attempted to put in place. The definitions of 'intermediary' as in the Act, and 'social media intermediaries' and 'significant social media intermediary' are not congruent or appears to be subset of the term 'intermediary' as the Act provides.

The scope of the term intermediary is broad and includes any person who on behalf of another person receives, stores or transmits electronic record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes while 'social media intermediary' means 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. Similarly, significant social media intermediary means a social media intermediary having a number of registered users in India and above such thresholds as notified by the central government.

The present rules are framed for the latter two definitions which only partially cover the definition intermediary as it apparently excludes search engines, online payment sites, online-auction sites, online-market places.

The basic objective of framing this set of rules was to provide i) guidelines to the intermediaries so as to enable them to get exemptions provided in the rules. As per these exemptions, an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him if the performance of the intermediary is in tune with the duties enunciated in the Section 79(2). Secondly, to lay down the procedures and safeguards for blocking for access by the public under sub-section (3) of section 69 A of the Act.

For the purpose of i) above, the rules have provided that due diligence are to be observed by an intermediary while performing his function. It serialises several tough functions for the intermediaries. Every intermediary, both social media and significant social media intermediaries are supposed to publish the rules and regulations, privacy policy and user agreement for accessing and using its services and computer resources by any person and also inform the users not to host, display, upload, modify, publish, transmit, store, update or share any information that stored in the computer or otherwise which belongs to another person and to which the user does not have any right and which are of the nature of bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force.

The intermediaries have to remain alert and should be able to identify the above resources and take timely action when he feels that a particular content is not in tune with its policy. The action may be in the form of termination from accessing the resources further or curtailment of the user rights immediately or remove non-compliant information or both, as the case may be; [Rule 31)(c)]. Thus, the rules have provided ample power to the intermediaries which are in the nature of discretionary.

For the second part i.e. procedure and safeguard for blocking, the rules have come up with introduction of a system of grievance redressal mechanism of intermediary [Section 3(2)]. The rules have not defined who is eligible for lodging a complaint or grievance. Anybody may make a complain and the Grievance Officer is supposed to accept this complain and also examine on his own whether any prima facie exist or not (3(2)(b).

The rule 3(2) defines what constitutes a grievance saying that "any content which is prima facie in nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows depicts such individual in any sexual act or conduct, or is in nature of impersonation in an electronic form, including artificially morphed images of such individual. In such cases, the officer is supposed to remove or disable access to such contents within 24 hours. The absence of proper definition of a complainant in the rules may create chaotic situation in complex matters. The complaint so long as it relates to complainants own of family members' perverted depiction of the body or honest attempt to remove a really harmful content the provision would work effectively. But there is scope that unscrupulous elements in society may complain saying anybody's photographic content as nude and the intermediary and demanding removal of it. Here the grievance officer is made the judge to decide what is partial nudity or full nudity.

Interestingly, the significant social media intermediaries, which happen to be a category distinguished by the number of users from that of the social media intermediaries is the most important category in the sense that this category of intermediaries are supposed to associate themselves in handling not only the sex content in the site but also serious materials that may pause a threat to the sovereignty of the country.

For this purpose, this category of intermediaries should put in place a mechanism to identify the originator of the content who can be placed before a competent Court by an order for the purpose of prevention, detection, investigation, prosecution or punishment of an offence related to sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse, etc. Various tasks have been entrusted to this category of intermediaries which includes engagement of three categories of persons for redrassal of grievance and publication of monthly report.

The offences of such type are punishable with imprisonment for a term of not less than five years.

The rules as notified and discussed above have indeed made in hurry making the most parts of the rules confusing. For clarification of the actual men at work of the laid down guidelines in the form of rules, another set of guidelines will be necessary. To make the things concrete, it will be the fitness of things to start amending the principal Act removing all infirmities.