The ministry of electronics and information technology (MeitY) on Monday released a comprehensive primer (in the form of frequently asked questions or FAQs) on the new social media and intermediary guidelines to bring more clarity and explain the legislation, with the minister of state for IT Rajeev Chandrasekhar saying the process will remain dynamic with rules continuing to evolve.
“The government will keep issuing new rules as required,” Chandrasekhar said. “In cyber jurisprudence there needs to be a culture of rule based accountability.”
Chandrasekhar also stressed that there needs to be concept of algorithmic fairness, referring to the allegations by whistleblower Frances Haugen that Facebook allegedly promoted the visibility of hate content in India. “I have said in the past that there is a need to scrutinise algorithms,” he said, speaking at the event. “New digital laws will be discussed and we will evolve a roadmap so that algorithms that infringe on Articles, 14, 19 and 21 of constitution are not used. Our main job is to protect the right to privacy and right to not be discriminated against.” His reference is to the right to equality, freedom of speech and expression, and the right to life and personal liberty.
“FAQs have been prepared to bring clarity as well as to explain the nuances of the due diligence to be followed by intermediaries”, the preface to the primer said. It added that the document “is in response to general queries received by MeitY. It is not a legal document and in no way whatsoever replaces, amends or alters any part of the IT Act/ IT Rules, 2021.”
{{/usCountry}}“FAQs have been prepared to bring clarity as well as to explain the nuances of the due diligence to be followed by intermediaries”, the preface to the primer said. It added that the document “is in response to general queries received by MeitY. It is not a legal document and in no way whatsoever replaces, amends or alters any part of the IT Act/ IT Rules, 2021.”
{{/usCountry}}“In order to ensure an Open, Safe & Trusted Internet and accountability of intermediaries including the social media intermediaries to users, Ministry of Electronics and Information Technology (MeitY) has notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as “IT Rules, 2021”) on 25th February, 2021,” the document states. “These Rules prescribe the due diligence to be followed by all intermediaries as well as the additional due diligence to be followed by significant social media intermediaries. The Rules also provide guidelines to be followed by publishers of news & current affairs and also online curated content providers.”
The document release Monday is different from the standard operating procedure (SOP) that the ministry is working on, which the minister said will address the contentious issue of which designated authority is allowed to issue take down orders. Chandrasekhar also clarified the government’s position on traceability, a clause that been challenged by messaging service WhatsApp in court. “As far as first originator is concerned, the government believes that when criminality occurs online and there is a legal valid order, then there are methods where without breaking encryption, it can be traced,” he said. “Cyber space cannot be a space where laws cannot reach.”
Social media firms welcomed the intervention. “We appreciate the government’s efforts in bringing more clarity on the 2021 IT Rules. We look forward to studying the FAQs,” a Meta (earlier called Facebook) spokesperson said.
Kazim Rizvi, founder of The Dialogue, a policy think tank said that the FAQs will be crucial in helping the intermediaries to better appreciate the finer nuances of the guidelines , but that a SOP is crucial.
“These FAQs accord clarity regarding the operational aspects of some of the crucial provisions. For instance, they lay down the details of the requisite information that needs to be communicated by the law enforcement agencies to the intermediaries while issuing a takedown notice,” he said. “With respect to the data retention mandate, the explainer provides that Section 61 C of the IT Act alongside the IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 must be referred to determine the kind and extent of user data that needs to retained by different kinds of intermediaries.”