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The new Information Technology Rules

The government recently released a set of guidelines to regulate social media and OTT content providers like Netflix and amazon prime. The prime concern behind this was an alleged misuse of social media, especially for the events that unfolded on January 26, 2021. What exactly is the rules' impact?

Section 79 of the Information Technology Act provides a 'safe harbour' to intermediaries that host user-generated content, exempting them from liability for the actions of users if they adhere to government-prescribed guidelines. However, the new guidelines prescribe an element of due diligence to be followed by the intermediary, failing which the safe harbour provisions would cease to apply to these platforms and they could be held liable.

The guidelines also prescribe a grievance redressal mechanism by mandating that the intermediaries should establish a mechanism for receiving and resolving complaints from users. These platforms will need to appoint a grievance officer to deal with such complaints, who must acknowledge the complaint within 24 hours, and resolve it within 15 days of receipt.

Surprisingly, the guidelines also lays down 10 categories of content that the platforms should not host, including content that “threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any foreign States”; “is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including 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 of India”, etc. which are vague enough to arouse concerns about arbitrary censorship.

The rules also stipulate that upon receipt of information about the platform hosting prohibited content from a court or the appropriate government agency, it should remove the said content within 36 hours. The penal provisions for violating these guidelines vary from imprisonment for three years to a maximum of seven years, with fines starting from Rs 2 lakh. Executives of intermediaries which fail to act on an order issued by the government citing threat to sovereignty or integrity, defence, security of the state or public order, can be jailed for up to a period of seven years under Section 69 of the IT Act.

Hence, a watchful eye must be kept on how these rules are used to ensure we don't descend into only consuming content the government wants us to consume in a censorship regime.

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