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Intermediary Guidelines and Digital Media Ethics Code, 2021

Apps have changed the digital platform in every working area with the aid of computers, mobile phones, and software. For businesses and customers, usage of computers in the creation, transmission, and storage of information is expanding, as well as sales processes taking place via technology. Trade internationally as well as domestically is booming thanks to e-commerce.

When one takes into consideration the fundamental role of technology in 1996, the United Nations Commission on International Trade Legislation established an electronic commerce model law. The United Nations General Assembly proposed in a resolution, no. 51/162, dated 30 January 1997, that all countries should give favourable regard to the aforementioned model law, which recognises electronic communication as well as paper-based communication as having equal legal rights. After this, a number of legislative changes took place in several nations.

The Indian government did something similar by passing the IT Act, 2000. It is an act to establish recognition for transactions carried out using electronic data interchange and other electronic communication tools, commonly referred to as electronic commerce, to enable electronic filing of documents with government agencies and amend the Indian Penal Code,1860, The Indian Evidence Act,1872, the banker's book evidence act,1891, and the Reserve Bank of India Act,1934.

The Digital India Programme's emergence was closely linked to India's rise as one of the world's leading internet users, which drove the country to improve the legislative framework to ensure social media sites are held liable. On 25 February 2021, the federal government introduced the 2021 Rules on Information Technology (IMT) which entered into force on 26 May 2021.

The 2021 rules are designed to govern platforms for social media and other OTT media similarly to TVs and newspapers. The regulations were set down in the IT Act of 2000 and will replace the 2011 internet intermediaries' guidelines.

Of the country's 376.1 million active social media users, 43% use Whatsapp, making it the country's primary platform for disseminating false news. As per official data, India has 53 million WhatsApp users, 44.8 million YouTube users, 41 million Facebook subscribers, 21 million Instagram users, and 1.75 million Twitter account holders.

While the rise of social media, digital news, and OTT (Over-the-top) platforms for entertainment took a beating thanks to the worldwide pandemic, there has been a simultaneous rise in hostility to the safety of users as well as the nation. These platforms that were supposed to be utilised for providing enjoyment are being co-opted by spammers and propagandists who propagate bogus news and hateful rhetoric. Free speech is being inappropriately abused on these platforms, which have realized the extreme need of having clear rules in place.

It has been continuously seen that time and time again, Central Governments have made changes to IT legislation in order to combat the spread of false news, child pornography, religious intolerance, and other problems.

Earlier Amendments
A portion of the Information Technology Act, 2000, Section 66A, prohibiting the distribution of false information, was ruled down by the Supreme Court as unlawful.

The Information Technology Act, 2008, was modified to include a new section that applies cybercrime laws to all types of information technology, including cell phones, computer hardware and software. The intermediaries received the knowledge on the unlawful data or material and so had the ability to delete it.

In 2011, section 79 of the Information Technology Act regulated the responsibilities of intermediaries in relation to third-party material and postings to the following criteria :-

For intermediaries, the powers they have are rather restricted as they are only functioning as a service provider. The intermediate doesn't decide who receives the information, who gets it, or what information is in the communication. Due diligence must be observed and other criteria established by the government must be endured in order for the internet intermediary to maintain a certain level of customer security.

2021 Amendment
Enabling citizens to use their right to freedom of speech and expression is certainly important, but it was not overlooked that this right is complicated and not absolute. This statement has been put out in several situations, when it is alleged to be subject to sensible limitations and capable of bearing special responsibilities.

However, on several occasions, this privilege functions as a blanket amnesty for offenders, helping them get out of jail while they propagate hatred, political instability, provocative speech that promotes conflict, riot, and bloodshed. It is imperative to balance free speech protections with the desire to safeguard democracy. The amendment mentioned above is helping pave the way in the same manner.

The Supreme Court has time and time again emphasised the need of moving quickly toward implementing binding regulations on diverse online platforms. After a non-governmental organisation named Prajwala wrote to the Supreme Court over the increasing circulation of child sexual abuse films on the internet, the Supreme Court advised taking a firm action and the need for an opaque filtering system to stem the tide of such videos.

The dramatic rise in the popularity of OTT platforms like Netflix, Amazon Prime and Hotstar that occurred during the Covid epidemic caused the number of customers to reach a record high. November 9, 2020: On this date, India's President executed Article 77(3) of the country's constitution, which gives him power to regulate and govern OTT (Over-the-top) services like WhatsApp and Facebook. After the addition of this step, it became very clear that OTT (Over-the-top) services were not going to be able to avoid censorship. On October 15th, 2020, the Supreme Court informed the Center for Internet Regulation that a government agency has formed an autonomous body to regulate OTT (Over-the-top) services.

On February 1st, 2021, the Supreme Court Bench consisted of Chief Justice S.A. Bobde, Justices A.S. Bopanna, and V. Ramasubramanian, issued a notice in which they ask for an immediate step in the battle against fake news and hate speech, by starting the Center for Research and the Study of Hate Speech and Fake News.

A long-term concern about the influence of social media on elections has now morphed into a threat to democracy. Social media has come forward as a useful source following the 2014 election, but one of the main responsibilities that comes with tremendous power is immense pressure. It has caused bogus material to circulate, with the intent of swaying the public into supporting a political agenda.

The Intermediary Guideline, 2021 is based on the study of equivalent guidelines established by Singapore, Australia, the European Union, and the United Kingdom, after which the Indian government modelled it. From the point of view of nature and the barriers that dynamic culture of India faces, the proposed system is viewed. To enhance the Intermediary Guidelines, which mainly consists of a delicate touch, self-administrative system with a three-level grievance redressal instrument for digital media, is mostly an effort to cultivate an authentic sensitive touch along with a uniform approach to processing digital media complaints.

Tens of thousands of takedowns took place during the year 2020, many of which were unheard due to the Government failing to clearly state their position. However, in the upcoming year, the framework is in place which will define the reasons for banning and removal of content, websites, accounts, etc.

It will help those who use social media realise the consequences of what they publish and what they should not post. A truth cannot be denied: future generations will continue to enjoy the same freedoms as those who came before them, with the one exception of liabilities, which will rise due to the internet intermediaries. There is a risk that online crime and hatred may go out of control. Responsibility can't be covered up when there are no consequences for violating laws or regulations on the internet.

Written By: Shashwata Sahu, Advocate, LLM, KIIT School of Law

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