Government Notifies Stringent New Safe Harbour Rules for Intermediaries and Digital Media Companies

- Vikram Jeet Singh and Kalindhi Bhatia

On February 25, 2021, the Ministry of Electronics and Information Technology and Communications notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 (“New Rules”) under the Information Technology Act, 2000. A copy of the New Rules is available here. The New Rules supersede the earlier Information Technology (Intermediary Guidelines) Rules 2011 (“Old Rules”)

The New Rules have become effective as of February 25, 2021; some provisions concerning significant social intermediaries and digital media codes will come into force 3 months after publication, i.e., on May 25, 2021.

The New Rules introduce several new obligations for social media platforms and digital streaming services. These will need to be complied with if social media platforms and digital streaming services are to claim the ‘intermediary safe harbor’, i.e., protection from liability for the third-party content they carry (akin to Section 230 of the US Communications Decency Act). This is a sea-change from the Old Rules, which required minimal compliance for claiming safe harbor protection.

Businesses and stakeholders are still reviewing the impact of these New Rules. We have set out some key new provisions below, that you should consider as a starting point to impact analysis:

1. Content Takedown Request by Government: Content takedown on Government request remains largely unchanged, and intermediaries can wait for a court order or Government notification to takedown content. Intermediaries are also required to comply with Government information requests within 72 hours.

2. Content Takedown Request by Individuals: Like the Old Rules, all intermediaries are expected to follow certain due-diligence requirements. In addition to providing for T&Cs, etc., intermediaries have to act on an individual’s takedown request to remove certain content (e.g., sexual content) within 24 hours of receiving a complaint.

3. Significant Data Fiduciaries: Significant social media intermediaries will be designated based on a government notified user-threshold (not yet specified) and will be subject to additional compliances. These compliances will come into force in 3 months, on May 25, 2021, and will include:

1. Appointing 3 separate officers locally, i.e., a compliance officer, a nodal office and a grievance officer. These officers will be responsible for implementing the New Rules, dealing with regulators and addressing user grievances.

2. A monthly compliance report will have to be submitted mentioning details of user complaints received and action taken.

3. Significant social media intermediaries will be required to have a physical local contact address in India.

4. Significant social media intermediaries providing messaging services will need to enable the identification of the first originator of information on their platforms.

5. Finally, significant social media intermediaries are required to proactively identify and block content depicting rape, child abuse or similar conduct.

4. Self-Regulation of Digital Media: A Code of Ethics has been introduced for online news and content streaming platforms, along with a three-tier self-regulatory structure. The New Rules set out how content can be self-classified by streaming platforms and the guidelines for publishing news, advertisements, etc. These provisions also come into force after 3 months, i.e., May 25, 2021.

5. Emergency Blocking Orders for Digital Media Content: Notwithstanding the self-regulatory code, in cases of emergency nature the New Rules allow the Secretary, Ministry of Information and Broadcasting, to direct content publishers to block content without giving them an opportunity of hearing.

As you can see, these New Rules have far reaching implications, and their true impact will become evident in the coming days.

Complying with India’s New Safe Harbour Rules

To get you started on the road to compliance, BTG have prepared a “Heat Map” on these new regulations. This Heat Map sets out the major changes notified under these laws, who is liable to comply, and categorizes the possible business impact of these new requirements. This map should help you formulate and prioritize your response to this regulatory change, and plan next steps.

In the interim, if you have any questions or wish to understand how the New Rules impact your business, please do not hesitate to reach out to us at practicemanager@btg-legal.com.