New Digital Media Rules: Significant Social Media Intermediaries
By Sri Y. Srinivasa Rao, Principal Assistant Sessions Judge, Tirupati
Introduction:— Human life is now being revolutionised by internet. Information Technology cracks the Penal Code and shakes the pre-existing structures of laws and rules, a fortiori, digital intermediaries have become centre-stage. Online world plays significant role in human life. Slate in the hands of child has been missed and a smart phone covers the little hands of a child to learn everything. Every one must know at least something about Internet Service Providers, social media websites and search engines etc. The question of liability of online intermediaries is a big challenge for Indian Judiciary.
The Information Technology Act,2000:— This enactment was codified in 2000 and it’s last amendment was taken place in 2008. This Act speaks about intermediary liability in India and is linked with Copyright Act, 1957. Combined reading these enactments are very essential to understand the social media intermediaries.
The word “intermediary” is defined in IT Act. It says that “any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record”. It also provides that an intermediary 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”
The subject of intermediary liability is dealt in Chapter XII of the Information Technology Act where as section 79 of the Act is an exemption.
In Shreya Singhal v. Union of India, (2013) 12 SCC 73, the scope of Sections 66A and 79 of the Information Technology Act was discussed. In Myspace v. Super Cassettes Industries Limited , it was held that Section 79 does not give immunity to intermediaries in cases of copyright infringement.. In SCIL v. Myspace, (2017) 236 DLT 478, it was held that The greater evil is where a private organization… be allowed to view and police content and remove that content which in its opinion would invite liability.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:
Rule 4 (1) (d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is one of new Rules as to publication of reports, as to reporting period of social media websites. As per new Digital Media Rules, significant social media intermediaries are very essential to appoint a grievance officer, a Nodal Officer and a Chief Compliance Officer. See. The Hindu News Paper, Monday, July 12, 2021 – Twitter website submitted such report.
Part – II of the new rules speaks about “DUE DILIGENCE BY INTERMEDIARIES AND GRIEVANCE REDRESSAL MECHANISM” and Part-III of these new rules deals with “CODE OF ETHICS AND PROCEDURE AND SAFEGUARDS IN RELATION TO DIGITAL MEDIA”.
Classification of any curated content shall be guided by the following sets of guidelines, namely:—
GENERAL GUIDELINES FOR CLASSIFICATION OF FILMS AND OTHER ENTERTAINMENT PROGRAMMES, INCLUDING WEB BASED SERIALS
There are general factors that may influence a classification decision at any level and in connection with any issue and the following factors are elucidated which may be read along with Part II of the Guidelines –
Curated content may be considered in the light of the period depicted in such content and the contemporary standards of the country and the people to which such content relates. Therefore, the context in which an issue is presented within a film or video may be given consideration. Factors such as the setting of a work (historical, fantasy, realistic, contemporary etc.), the manner of presentation of the content, the apparent intention of the content, the original production date of the content, and any special merits of the work may influence the classification decision.
Classification decisions may take into the theme of any content but will depend significantly on the treatment of that theme, especially the sensitivity of its presentation. The most challenging themes (for example, drug misuse, violence, pedophilia, sex, racial or communal hatred or violence etc.) are unlikely to be appropriate at the junior levels of classification.
(c) Tone and impact:
Curated content may be judged in its entirety from the point of view of its overall impact. The tone of content can be an important factor in deciding the influence it may have on various groups of people. Thus, films/serials that have a stronger depiction of violence may receive a higher classification.
(d) Target audience:
The classification of any content may also depend upon the target audience of the work and the impact of the work on such audience.
ISSUE RELATED GUIDELINES
This part of the guidelines comprises the issues and concerns that apply in varying degrees to all categories of classification and elaborates the general approach that may be taken in this regard to the same. These concerns are listed in alphabetical order, and are to be read with the four General Guidelines listed in Part I
The categorical classification of content shall take into account the impact of a film on matters such as caste, race, gender, religion, disability or sexuality that may arise in a wide range of works, and the classification decision will take account of the strength or impact of their inclusion.
(b) Psychotropic substances, liquor, smoking and tobacco:
Films or serials, etc. that as a whole portray misuse of psychotropic substances, liquor, smoking and tobacco would qualify for a higher category of classification.
(c) Imitable behaviour:
(1) Classification decisions may take into account any portrayal of criminal and violent behaviour with weapons.
(2) Portrayal of potentially dangerous behaviour that are likely to incite the commission of any offence (including suicide, and infliction of self-harm) and that children and young people may potentially copy, shall receive a higher classification.
(3) Films or serials with song and dance scenes comprising lyrics and gestures that have sexual innuendos would receive a higher classification.
(1) Language is of particular importance, given the vast linguistic diversity of our country. The use of language, dialect, idioms and euphemisms vary from region to region and are culture- specific. This factor has to be taken into account during the process of classification of a work in a particular category.
(2) Language that people may find offensive includes the use of expletives. The extent of offence may vary according to age, gender, race, background, beliefs and expectations of the target audience from the work as well as the context, region and language in which the word, expression or gesture is used.
(3) It is not possible to set out a comprehensive list of words, expressions or gestures that are acceptable at each category in every Indian language. The advice at different classification levels, therefore, provides general guidance to consider while judging the level of classification for content, based on this guideline.
(1) No content that is prohibited by law at the time being in force can be published or transmitted.
(2) Nudity with a sexual context will receive a higher classification of “A”.
No content that is prohibited by law at the time being in force can be published or transmitted. The classification of content in various ratings from U/A 16+ A shall depend upon the portrayal of non-explicit (implicit) to explicit depiction of sexual behaviour.
Classification decisions shall take account of the degree and nature of violence in a work. See also. Notification issued by Ministry of Electronics and Information Technology, Govt. of India, dated, the 25th February, 2021 G.S.R. 139(E): the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.