Deciphering The Intermediary And Digital Media Rules: Government Issues New FAQS – Media, Telecoms, IT, Entertainment | #socialmedia


Deciphering The Intermediary And Digital Media Rules: Government Issues New FAQS

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Earlier in 2021, the Government of India issued the
much-contested Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules, 2021 (Intermediary Rules), under
the Information Technology Act, 2000 (IT Act) to regulate online
platforms and digital media. These rules were laden with
ambiguities and many stakeholders challenged the validity of the
same across various courts in India. The Intermediary Rules set
forth several due diligence requirements and grievance redressal
obligations for such platforms, thereby increasing the regulatory
burden in this sector. To ease some concerns and provide clarity to
the stakeholders, the Ministry of Electronics and Information
Technology (MEITY) issued frequently asked questions (FAQs) on 1
November 2021 to clarify certain aspects in relation to the
Intermediary Rules. This article aims to provide a snapshot of the
key clarifications and their implications for the digital

Classification of intermediaries

A key change introduced by the Intermediary Rules was the
categorization of ‘intermediaries’ as
social media intermediaries’ (SMIs) and
significant social media intermediaries‘ (SSMIs).
The Intermediary Rules subjected SSMIs to additional obligations
including, inter alia, appointing personnel in India, user
tracing, deployment of automated tools with periodic human
oversight, etc. While there is some prior jurisprudence in India
regarding interpretation of ‘intermediaries’, the FAQs
appear to broaden the definition by acknowledging that many kinds
of platforms may qualify as ‘intermediaries’ with respect
to the third-party content made available, shared, hosted, stored
or transmitted on their platforms.

Additionally, there is also lack of clarity and limited context
regarding interpretation of SMIs and SSMIs. In terms of the
Intermediary Rules, SMIs (which includes SSMIs) are intermediaries
which primarily or solely enable online interaction between two or
more users and allow them to create, upload, share, disseminate,
modify or access information using their services. Importantly, the
recent FAQs note that an ‘intermediary’ incidentally
enabling online interactions may not be considered as a SMI.
Further, the FAQs set out certain indicative features which may be
taken into account while assessing whether an entity is an SMI or
not (e.g., whether it allows social networking, including through
specific features such as ‘follow’ or ‘subscribe’,
whether it provides opportunity to interact with unknown
individuals, whether it enables content to become ‘viral’,

Key clarifications to the Intermediary Rules

  • Appointment of personnel: As a part of their due
    diligence obligations, SSMIs are required to appoint certain
    personnel such as a Chief Compliance Officer (for ensuring
    compliance with the IT Act and its rules), a nodal contact person
    (for 24×7 coordination with law enforcement agencies) and a
    Resident Grievance Officer (to facilitate the redressal of
    grievances). The FAQs clarify that the Chief Compliance Officer and
    the nodal contact person cannot be the same, however the
    roles of the nodal contact person and the Resident Grievance
    Officer may be performed by the same person. That said, MEITY
    ‘advises’ that the SSMI should appoint separate individuals
    for this purpose and provide separate contact details for
    grievances submitted by users and the requests/orders made by the
    Government or authorized Government agencies.

  • Content takedown by intermediary: SSMIs are required
    to notify the users when their content has been removed / disabled
    by an SSMI ‘on its own accord’ (e.g., through the use of
    automated tools / filters or identification by an
    agency/organisation of content containing child sexual abuse
    material, removal of content on the advise of the Resident
    Grievance Officer, etc.). However, in situations where it is not
    practical to notify users prior to taking down content, such as
    during instances of attack by bots or malware, SSMIs may undertake
    steps while handling a non-human user, to effectively counter bot

  • Action taken by intermediary pursuant to complaints:
    According to the FAQs, intermediaries are expected to provide
    ‘reasonable explanation’ to the complainant for any action
    taken or not taken with respect to such complaint to facilitate
    two-way communication between the aggrieved users and the
    intermediary. For instance, in case of frivolous complaints, SSMIs
    may cite the nature of the complaint as a reason for not taking
    action. The FAQs also provide that adequate flexibility has been
    afforded to the intermediaries to set the process and the method to
    provide explanation to the aggrieved user.

  • Tracing of first originator: MEITY has maintained that
    the regulatory intent behind the rule that mandates detection of
    the first originator of a message, is to merely obtain the
    registration details of the first originator of a message and not
    to break or weaken encryption. The clarifications elucidate that
    the principle of detection is based on the ‘hash’ value of
    the unencrypted messages, which will be common for identical
    messages. The FAQs give SSMIs flexibility to come up with
    alternative technological solutions, including the method of
    generating and storing the hash.

  • Consequences and penalties: The FAQs reiterate that in
    case of any non-compliance, an intermediary shall lose its
    exemption from liability against third party content under Section
    79 of the IT Act and may also be liable for punishment under any
    existing law. The FAQs further clarify that while users may not be
    liable for any direct penalty under the Intermediary Rules, users
    may however be liable to be prosecuted / penalised with respect to
    the content that they share on the platform, for any violation of
    other laws such as IT Act, Indian Penal Code, Copyright Act,


Since their enactment, the Intermediary Rules have received a
fair share of criticism for inter alia lack of stakeholder
consultation, imposition of onerous obligations on online
platforms, additional content moderation and take-down burdens, and
user privacy concerns. While the fate of these rules remains
undecided (pending outcome of the ongoing proceedings before
various courts), these rules are in force and appear to be actively
enforced by MEITY and other concerned authorities (in particular,
the obligations relating to appointment of personnel in India).

While MEITY has asserted in the FAQs that the Intermediary Rules
are consistent with protecting the fundamental right of privacy of
individuals with adequate safeguards, many continue to question the
practicality, adverse implications, and potential misuse of some of
its provisions. For instance, it has been argued that enabling
identification of the first originator has the effect of breaking
the end-to-end encryption since SSMIs will have to deploy such
traceability features across all its platforms, irrespective of
whether it receives an appropriate court order or not. In fact,
Intermediary Rules were challenged by WhatsApp on grounds of its
incompatibility with end-to-end encryption and the implications of
the tracing obligations on user privacy. Though the FAQs appear to
be aimed at providing some ease of mind to users regarding the
privacy concerns, it is unclear if the clarifications ease the
concerns cited by platforms like WhatsApp in terms of technical
operations and the consequential privacy implications for

The much-awaited clarifications are an attempt to fill the gap
with respect to some of the obligations for intermediaries.
However, thus far it appears that the FAQs have only received
lukewarm response. While some stakeholders are appreciating the
clarifications, some continue to be wary of its impact. In any
case, with the release of these FAQs, it seems that the Government
is pushing for the Intermediary Rules, and it is paramount for
online platforms to ensure compliance with the same.

The content of this document do not necessarily reflect the
views/position of Khaitan & Co but remain solely those of the
author(s). For any further queries or follow up please contact
Khaitan & Co at

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