IT Rules 2021 - Social Media & OTT Rules

Social media, OTT Platforms, online news websites regulation in india (Information Technology Rules, 2021 )

This are the Rules framed pursuant to the powers conferred by Section 79(2)(c) and Section 69A(2) of the Information Technology Act, 2000 provides for classification of films and other entertainment programmes, including web series, bring digital news platforms within the ambit of regulations covering print and electronic media and attempts to rein in social media intermediaries. 

Guidelines for intermediary and social media intermediary 

The Rules define 'significant social media intermediary' as social media with users above the threshold notified by the Central government. 

The Rules mandate that social media intermediary should 'enable the identification of the first originator of the information on its computer, as "may be required by a judicial or or an order passed by the Competent authority" and such an order shall only be passed for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order.

If has also been provided that the significant social media intermediary "shall have a physical contact address in India published on its website or mobile based Internet application or both, as the case may be, for the purposes of receiving the communication addressed to it."

The rules and regulations, privacy policy or user agreement of the intermediary should inform the user of computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that is inter alia, obscene, pornographic, paedophilic, 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. 

No such information should be published which is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.

Self-Regulatory Body

It has been notified that would be one or more self-regulatory bodies of publishers. Such a body shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members. The concerned Regulatory body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not be been resolved by the publisher within 15 days.

Disposing a grievance

It has been laid down that a self-regulating body while disposing a grievance or an appeal will issue guidance or advisories to the applicable publisher/entities: 

(a) warning, censuring, admonishing or reprimanding such entity; 

(b) requiring an apology by such entity; or 

(c) requiring such entity to include a warning card or a disclaimer; or 

(d) in case of online curated content, direct such entity to (i) reclassify ratings of relevant content; (ii)make appropriate modification in the content descriptor, age classification and access control measures; (iii) edit synopsis of relevant content; 

Code of Ethics and Procedure/safeguards for Digital/Online media

Part III of the Rules state that digital and online media will be governed by Code of Ethics. The Code of Ethics which in turn is given in the appendix make the Programme Code under under section 5 of the Cable Television Networks regulation) Act, 1995 and norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978 applicable to digital media. 

The Code of Ethics is applicable to those entities who are operating within the territory of India and such entity conducts the systematic business activity of making its content available in India, which is targeted at Indian users. The code of ethics will cover the following entities:

• 1. Publishers of news and current affairs content; 

• intermediaries which primarily enable the transmission of news and current affairs content; 

• 2. Publishers of online curated content.

• intermediaries which primarily enable the transmission of online curated content.

Monthly compliance report

The rules require the concerned body/entity to publish a monthly compliance reportmentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively by the significant social media intermediary.

Such entities should not publish content which affects the sovereignty and integrity of India, jeopardises security of State or which is detrimental to India’s friendly relations with foreign countries. Further, online content should be classified based on the nature of the content 'U', 'UA', 'A' etc

They should also take into consideration India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group.

A three tier structure has been notified to address the grievances made by various users. 

(a) Level I - Self-regulation by the applicable entity; 

(b) Level II — Self-regulation by the self-regulating bodies of the applicable entities 

(c) Level III - Oversight mechanism by the Central Government.

Establishment of "Grievance Portal"

It has been laid down that the concerned Ministry shall establish an online Grievance Portal, as the central repository for receiving and processing all grievances from the public in respect of the Code of Ethics, within three months of the commencement of the rules.

• If a person is having a grievance against any 'content published by an applicable entity'then the same may register its grievance on the Grievance Portal.

• The Portal shall generate and issue an acknowledgement of the grievance a the benefit of the complainant within 24 hours of its registration, and electronically direct the grievance to the applicable entity for addressing the grievance, and also refer such grievance to the Ministry and the self-regulating body for information and record.

Mandatory Notification by the Significant publishers and 'content' creators 

It has been stated that it shall be mandatory for 'significant publisher' of news and current affairs content to notify the Broadcast Seva that - it is operating in the territory of India, by furnishing the information that may be required on the Broadcast Seva by the Ministry, for the purpose of enabling communication and coordination with such publisher. 

The explanation reads that - for the purposes of this rule, a publisher of news and current affairs content shall be a significant publisher of news and current affairs content if it: 

(a) publishes news and current affairs content as a systematic business activity. 

(b) operates in the territory of India.

(c) has not less than five lakh subscribers, or fifty lakh followers on the services of any significant social media intermediary, as the case may be.

"Publisher/entities shall take into consideration India’s multi-racial and multi-religious context and exercise due caution and discretion when featuring the activities, beliefs, practices, or views of any racial or religious group.” reads out the general principles of the code of conduct 

Self-Classification of Content

The rules state that the OTT platforms, which have been regulating their content through various, would be self-classifying the content into five age based categories- U (Universal), U/A 7+, U/A 13+, U/A 16+, and A (Adult). The concerned online platforms would be required to implement parental locks for content classified as U/A 13+ or higher, and reliable age verification mechanisms for content classified as “A”.

My Views :

Government has played a carrot and stick, while adamant social media gets the stick as it gets in other countries too, OTT platforms and Online news gets the carrot of self regulation. Now, within 3 months, WhatsApp has too ready their software to pinpoint originator of message so fake news peddler’s will be behind the bars quickly . Now US IT behemoths like Google and Facebook need to appoint compliance officers responsible towards Indian law and enforcement and these officers can face jail like the impending Amazon Prime lady with any Anticipatory bail for tandav Web-series. I think next now we can wait for media bargaining code like the one in EU, UK and Australia . Indian cyberspace is now governed cyberspace moving an inch towards Internet Balkanisation, which remains inevitable .

Admission & Confession in Cyber Crime Cases

Admission & Confession in Cyber Crime (IT Act,2000) Cases

Digital evidence: reliability When one examines the issue of reliability of digital evidence there arises a number of questions. Should forensic software (digital evidence) be entitled to a judicial presumption of reliability? When, if ever, should courts compel non-party forensic software vendors to reveal proprietary source code to party experts in order to assure a fairer trial? And what does reliability mean in the context of digital evidence anyway? 

The term ‘Admission’ means stating something or admitting something other than guilt. So now the question is does confession also meant the same. The answer is no, as there is a very thin life difference between confession and admission. The word ‘confession’ means acknowledgement of guilt made by a person after an offence has been committed.

ADMISSION (Sec. 17-23, 31)

According to sec. 17 of the Indian Evidence Act,

“An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, as described under Indian Evidence Act.”

Admission is a substantive piece of evidence but not conclusive proof also it waives or dispenses the production of evidence by concealing that the fact asserted by the opponent is true. 

In the case, Raja Pratap Bahadur Singh v. Raja Rajgan Maharaj Jagatjit Singh [1936 Lucknow] it was held that admissions are a very weak kind of evidence and the court may reject the same if it is satisfied from other circumstances that they are untrue. Hence it shifts the onus to the maker on the principle that what a party himself admits to being true may be reasonably presumed to be true so that until the presumption is rebutted the fact admitted must be taken to be true.

In English Law, the term ‘admission’ is used only in civil cases but in Indian laws, it is used in both civil as well as criminal cases. The statement is a genus; admission is the species and confession is the sub-species. Admission will lose its effect if not made voluntarily.

WHO CAN MAKE ADMISSION

Sec. 18 of the Indian Evidence Act allocates classes of person who all can make an admission-

• Party to the proceeding

• Agent authorized by such party [but the statement of agent will be binding only during the term of agency and before proving admission by the agent he has to prove his agency]

• Party suing or sued in a representative character making admission while holding such character [it will include trustees, executors, administrators, managers, etc.]

• Person who have a proprietary or pecuniary interest in the subject matter of the proceeding

• Person from whom parties have derived the interests in the subject matter of the suit

Admission of a fact made by a pleader in the conduct of the suit on his client’s behalf is binding on the client. But a party is not bound by a pleader’s admission in an argument on what is a pure question of law.

An exception to Sec. 18 of IEA

Sec 19 – Admissions by persons whose position must be proved as against party to suit

Sec. 19 states that any third party gives such a statement that proves the liability and right against any party to the suit will be admissible. The object of this section is not to lay down that certain statements are relevant or admissible but merely to add the category of a person by whom a statement made before considered to be an admission within the terms of the act.

Sec. 20- Admissions by persons expressly referred to by party to suit

When the party expressly refers to the third person for some information in reference to the subject matter which is in dispute then the statement made by the third person will be admissible.

Sec. 19 and Sec 20 are exceptions to the rule that statements made by strangers to a proceeding are not admissible within the terms of the act.

It is a general rule that admission cannot be proved on or on behalf of a person who makes it but sec. 21 is an exception to this general rule. Sec. 21 has three clauses which state that-

• Person making the admission was dead and hence his admission made earlier during his lifetime will be admissible (Sec. 32)

• When the statement is about the existence of any state of mind, body, or about the time when such state of mind or body existed and accompanied by the conduct then that statement will be held admissible (sec. 14)

• When the fact is not otherwise relevant to become relevant (Sec11)

ORAL ADMISSION-

Admission can be made either orally, documentary or in electronic form as mentioned in Sec.17. But sec. 22 and Sec. 22 A deals with when oral admission as to contents of document or electronic form will become relevant.

Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

For Example- Sunil executed a deed of the mortgage against Sheela. Later Sheela files a suit for possession of the property but during the trial, Sunil denied the existence of any such deed. So, in this case, Sheela Can’t prove by oral evidence that she has before some men admitted that Sunil mortgaged a deed. She has to produce the original deed in a court of law.

ADMISSION IN CIVIL CASES- Sec. 23

In civil cases if it appears to the court that parties to the suit have mutually agreed together that evidence should not be given or made upon an express condition the evidence not to be given then any admission made related to it will be irrelevant. But this section will not discharge any barrister, advocate, attorney, pleader from giving evidence which he is compelled to give u/s 126 of Evidence Act.

This section gives effect to the maxim ‘interest reipublicae ut sit finis litium’ which means it is for the interest of the state that there should be an end to litigation.

ADMISSION ACT AS AN ESTOPPEL

Sec. 31 of the Indian Evidence Act states that Admissions are not conclusive proof but they act as estoppel.

Estoppel has been defined in Sec. 115 of the evidence act. The bare reading of section 115 of the said act is-

“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing”

CONFESSION

Confession has not been defined anywhere in the Act. A ‘confession’ is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. It is also said that every confession is an admission but every admission is not a confession. 

The substantive law of confession is contained in Sec. – 24 to 30 of the evidence act and the procedural laws in Sec. 164, 281, 463 of the Criminal Procedure Code. It is presumed that a person will not make an untrue statement against his own interest. 

It has been held in Palvinder Kaur v. State of Punjab[ AIR 1952] that confession must either be accepted or rejected as a whole and the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as incredible. Moving towards the further procedures of confession, let’s see what are the laws related to it.

WHEN CONFESSION WILL BECOME IRRELEVANT (Sec. 24-26)

Sec. 24- Confession caused by inducement, threat or promise, when irrelevant in a criminal proceeding.

Sec. 24 of the Indian Evidence Act states that—A confession made by an accused person will become irrelevant in a criminal proceeding, if it appears to the Court that the confession has been caused by any inducement, threat or promise, having reference to the charge against the accused person and such inducement, threat, promise has proceeded from a person who is in authority and is sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Here authority is not merely a police officer or a judicial magistrate but every such person who reasonably holds sway over investigation or trial.

Sec. 28 make this section relevant only if the threat, promise, or inducement is fully removed before recording the confession.

Sec. 25 – Confession to a police officer

A confession made to a police officer shall not be proved against an accused who made it and this confession will be held as inadmissible. The reason behind this is police officers are often regarded as untrustworthy.

But in the case Sita Ram v. State of UP [AIR 1966 SC], a confession was written to a letter and signed by the accused and addressed to a police officer was held to be admissible as the letter was not written in the presence of police officer.

Sec. 162 of CrPC also enacts that no statement made by any person to the police officer in the course of an investigation shall if taken down in writing, be signed by the person making it, then such writing will not be used as evidence.

Sec. 26 – Confession in police custody

A confession made by any person in the custody of police will be held inadmissible unless it shall be recorded in the immediate presence of the Magistrate.

The object of Sec. 25 and 26 is to prevent the practice of torture by the police for the purpose of extracting a confession from the accused person. A confession made by any person in the custody of police is held inadmissible in law because it is against the rule of natural law. The presence of the Magistrate secures the free and voluntary nature of confession.

HOW MUCH OF INFORMATION RECEIVED AGAINST ACCUSED MAY BE PROVED

Sec. 27 of the act states that if the confession of the accused is supported by the discovery of a fact then it may be presumed to be true and not to have been extracted and it comes into operation only if-

• When certain facts are deposed to as discovered in consequence of information received from an accused person in police custody.

• If the information relates distinctly to the fact discovered.

This section is an exception to Sec. 25 and 26. The object of this section is to admit the evidence which is relevant to the matter under inquiry namely the guilt of the accused and not to admit the evidence which is not relevant to that matter. The very first condition to bring sec. 27 into operation is the discovery of a fact in pursuance of information received from the accused. Where the accused made the disclosure statement leading to the discovery of offence then the statement of the accused will be admissible.

CONFESSION OTHERWISE RELEVANT NOT TO BECOME IRRELEVANT

Sec. 29 of the Indian Evidence Act states that, if the confession is made under a promise of secrecy or in consequence of deception which has been practised on the accused, or when he was drunk, or when it was made as an answer for a question which the person making it is not supposed to answer or if he was not warned that he was bound against his confession, for the purpose of obtaining it then such confession will not become irrelevant.

Sec. 164 of CrPC provides the formalities to be undergone by a Magistrate in recording confession. The magistrate has a duty to explain the pros and cons. Of confession to a person making it. But the abovementioned section does not make a confession irrelevant because the accused was not warned that he was not bound to make it.

Sec. 30 of the act states that when more than one person is jointly accused of the same offence and if one of the co-accused makes a confession regarding himself and some other such persons, the court will take that confession into account against the accused and his co-accused. In Kashmira Singh v State of MP (AIR 1952 SC159), the court held that the confession of an accused person against a co-accused will not run evidence as it does not come within the meaning of evidence contained in sec.3 of the evidence act.

CONCLUSION

After all the terms “confession and admission” were coined for evidentiary use, courts have endeavored to draw clear distinctions between them. Conclusively, it can be said that the admission has a vast scope than confession, as the hindmost comes under the ambit of the former. Hence, every confession is an admission, but the reverse is not true.

The major difference between these two is that in the case of confession, the conviction is based on the statement itself, however, in the case of admission, additional evidence is required, to support the conviction.

The distinction between a confession and an admission is not based upon a practical clarification but is based upon the substantive differences of the character of the evidence extrapolated from each. This is to say, a confession is a direct acknowledgment of guilt, on the part of the accused, and by the very definition of it, ostracized an admission which of itself is a statement, oral or documentary, that enables the court to recollect a conclusion as to any relevant fact or fact in issue. It will be meticulously to say that every confession, is an admission but every admission doesn’t necessarily amount to a confession. In other words, a confession is an admission provided that a person charged with a crime, standing or suggesting the inference that he committed the crime, makes it at any time.