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The newly notified intermediary guidelines and digital media ethics code are indeed a step in the right direction. The guidelines stipulate a progressive approach, proactively balancing rights guaranteed to every citizen under the Constitution of India with the reasonable restrictions as mandated by Article 19(2).

As Mr. Ravi Shankar Prasad rightly stated while unveiling the Information Technology releases Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Rules),

"Proliferation of social media, on one hand empowers the citizens, on the other hand it gives rise to some serious concerns and consequences which have grown manifold in recent years."

For starters, the Rules are required to be observed by intermediaries and not by users who generate content. This means that the tenets of freedom of speech that the Constitution has envisaged and the Courts have upheld over the years continue to remain unperturbed. The rules facilitate this by putting forth due diligence mechanisms which place the onus on intermediaries to self-regulate, instead of effectuating censorship and curbs at the behest of government. At the same time, if a user feels that their rights are violated, clear stipulations are provided in the Rules. There is a mechanism in place for making complaints to the intermediaries as well and a grievance redressal mechanism is envisaged. An intermediary must publish details of its Grievance Officer, thereby enabling complaints to be dealt with expeditiously.

Every Social Media Intermediary is required to publish it's privacy policy periodically and inform its users of changes, if any, made time and again. By mandating the said publication on websites and applications, users will remain informed and updated continually.

In addition to the due diligence which is to be observed by intermediaries, a significant social media intermediary (likes of Facebook, Instagram, Snapchat) must discharge additional due diligence. However, care has been taken to distinguish an intermediary from a significant social media intermediary. Therefore, limited compliances are to be maintained by intermediaries.

The focus of the guidelines is "self-regulation" which mandate a process of soft-touch self-regulatory institutional frameworks by imposing a trust-based mechanism for accountability, instead of adopting an approach which polices or monitors.

When can a complaint be made to an intermediary by a user and/or victim?

Firstly, it is important to note that in terms of Rule 3 of the Rules, every intermediary must prominently it's publish privacy policy, user agreement prominently on website and/ or application stipulating that the the user of computer resource shall not host, display, upload, modify, publish, transmit, store, update or share any information that:

1. belongs to another person and to which the user does not have any right;
2. is defamatory, obscene, pornographic, pedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;
3. is harmful to child;
4. infringes any patent, trademark, copyright or other proprietary rights;
5. violates any law for the time being in force;
6. deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading in nature but may reasonably be perceived as a fact;
7. impersonates another person;
8. 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 cognisable offence or prevents investigation of any offence or is insulting other nation;
9. contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
10. 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

A user or a victim may make a complaint against the violation of the provisions of Rule 3 or any other matters pertaining to the computer resources made available by it which shall be acknowledged by the intermediary's Grievance Redressal  Mechanism. The Grievance Officer shall be responsible for acknowledging the complaint within twenty four hours  and resolving it within a period of fifteen days from the date of its receipt. 

For content which is prima facie in the nature of any material which exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation in an electronic form, including artificially morphed images of such individual, the intermediary shall take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it within 24 hours. This indeed is a positive step towards eliminating and addressing violent, degrading or pornographic materials concerning women and children, including advertising and disseminating information aimed at eliminating all forms of violence against women.

Identifying First Originator of Information of Message:

The guidelines stipulate that every significant social media intermediary shall enable Identification of First originator of Information. Those Significant Social Media Intermediaries providing Messaging services will enable identification of the first originator of the information on its computer resource as may be required by court order or in terms of order passed by competent authority under Section 69 of the IT Rules, 2009. The proviso to this provision states that such an order can only be made on limited grounds 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, or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material, punishable with imprisonment for a term of not less than five years and, where other less intrusive measures are ineffective.

This clearly upholds the "Doctrine of Proportionality" as stipulated in the landmark 2018 Adhaar judgment (Justice K. S. Puttaswamy V. Union of India) which had clearly stipulated that any restriction on privacy is required to be subjected to the three-pronged test of legality, legitimate state aim, and proportionality, in addition to meeting the requirements of constitutionally permissible restrictions under Part 3 of the Constitution.