Intermediary Guidelines and Digital Media Ethics Code Amendment Rules, 2023

Introduction

The Ministry of Electronics and Information Technology recently released the IT Intermediary Guidelines 2023 Amendment for social media and online gaming. The notification is crucial when the Digital India Bill’s drafting is underway. There is no denying that this bill, part of a series of bills focused on amendments and adding new provisions, will significantly improve the dynamics of Cyberspace in India in terms of reporting, grievance redressal, accountability and protection of digital rights and duties.

What is the Amendment?

The amendment comes as a key feature of cyberspace as the bill introduces fact-checking, a crucial aspect of relating information on various platforms prevailing in cyberspace. Misformation and disinformation were seen rising significantly during the Covid-19 pandemic, and fact-checking was more important than ever. This has been taken into consideration by the policymakers and hence has been incorporated as part of the Intermediary guidelines. The key features of the guidelines are as follows –

• The phrase “online game,” which is now defined as “a game that is offered on the Internet and is accessible by a user through a computer resource or an intermediary,” has been added.
• A clause has been added that emphasises that if an online game poses a risk of harm to the user, intermediaries and complaint-handling systems must advise the user not to host, display, upload, modify, publish, transmit, store, update, or share any data related to that risky online game.
• A proviso to Rule 3(1)(f) has been added, which states that if an online gaming intermediary has provided users access to any legal online real money game, it must promptly notify its users of the change, within 24 hours.
• Sub-rules have been added to Rule 4 that focus on any legal online real money game and require large social media intermediaries to exercise further due diligence. In certain situations, online gaming intermediaries:
  • Are required to display a demonstrable and obvious mark of verification of such online game by an online gaming self-regulatory organisation on such permitted online real money game
  • Will not offer to finance themselves or allow financing to be provided by a third party.
• Verification of real money online gaming has been added to Rule 4-A.
  • The Ministry may name as many self-regulatory organisations for online gaming as it deems necessary for confirming an online real-money game.
  • Each online gaming self-regulatory body will prominently publish on its website/mobile application the procedure for filing complaints and the appropriate contact information.
  • After reviewing an application, the self-regulatory authority may declare a real money online game to be a legal game if it is satisfied that:
    • There is no wagering on the outcome of the game.
    • Complies with the regulations governing the legal age at which a person can engage into a contract.
  • The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have a new rule 4-B (Applicability of certain obligations after an initial period) that states that the obligations of the rule under rules 3 and 4 will only apply to online games after a three-month period has passed.
  • According to Rule 4-C (Obligations in Relation to Online Games Other Than Online Real Money Games), the Central Government may direct the intermediary to make necessary modifications without affecting the main idea if it deems it necessary in the interest of India’s sovereignty and integrity, the security of the State, or friendship with foreign States.
  • Intermediaries, such as social media companies or internet service providers, will have to take action against such content identified by this unit or risk losing their “safe harbour” protections under Section 79 of the IT Act, which let intermediaries escape liability for what third parties post on their websites. This is problematic and unacceptable. Additionally, these notified revisions can circumvent the takedown order process described in Section 69A of the IT Act, 2000. They also violated the ruling in Shreya Singhal v. Union of India (2015), which established precise rules for content banning.
  • The government cannot decide if any material is “fake” or “false” without a right of appeal or the ability for judicial monitoring since the power to do so could be abused to thwart examination or investigation by media groups. Government takedown orders have been issued for critical remarks or opinions posted on social media sites; most of the platforms have to abide by them, and just a few, like Twitter, have challenged them in court.

Conclusion

The new rules briefly cover the aspects of fact-checking, content takedown by Govt, and the relevance and scope of sections 69A and 79 of the Information Technology Act, 2000. Hence, it is pertinent that the intermediaries maintain compliance with rules to ensure that the regulations are sustainable and efficient for the future. Despite these rules, the responsibility of the netizens cannot be neglected, and hence active civic participation coupled with such efficient regulations will go a long way in safeguarding the Indian cyber ecosystem.

Author : Mr. Abhishek Singh, Lead – Policy and Advocacy, CyberPeace