Section 4 in Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
4. Additional due diligence to be observed by significant social media intermediary and online gaming intermediary.—
(1)In addition to the due diligence observed under rule 3, a significant social media intermediary, within three months from the date of notification of the threshold under clause (v) of sub-rule (1) of rule 2, and an online gaming intermediary that enables the users to access any permissible online real money game, shall, observethe following additional due diligence while discharging its duties, namely:—(a)appoint a Chief Compliance Officer who shall be responsible for ensuring compliance with the Act and rules made thereunder and shall be liable in any proceedings relating to anyrelevant third-party information, data or communication link made available or hosted by that intermediary or such online gaming intermediary where he fails to ensure that such intermediary observes due diligence while discharging its duties under the Act and rules made thereunder:Provided that no liability under the Act or rules made thereunder may be imposedon such significant social media intermediary without being given an opportunity of beingheard.Explanation.—For the purposes of this clause ―Chief Compliance Officer‖ means a key managerial personnel or such other senior employee of a significant social media intermediary or an online gaming intermediary, as the case may be who is resident in India;(b)appoint a nodal contact person for 24x7 coordination with law enforcement agencies andofficers to ensure compliance to their orders or requisitions made in accordance with theprovisions of law or rules made thereunder.Explanation.—In this clause, “nodal contact person” means the employee of—(i)a significant social media intermediary, other than its Chief Compliance Officer; or(ii)an online gaming intermediary, who is resident in India;(c)appoint a Resident Grievance Officer, who shall, subject to clause (b), be responsible forthe functions referred to in sub-rule (2) of rule 3.Explanation.—For the purposes of this clause, ―Resident Grievance Officer‖ means theemployee of a significant social media intermediary or an online gaming intermediary, as the case may be, who is resident in India;(d)publish periodic compliance report every month mentioning the details of complaints received and action taken thereon, and, in respect of asignificant social media intermediary, and the number of specific communication links or partsof information that the intermediary has removed or disabled access to in pursuance of any proactive monitoring conducted by using automated tools or any other relevant informationas may be specified;(2)A significant social media intermediary providing services primarily in the nature ofmessaging shall enable the identification of the first originator of the information on its computer resourceas may be required by a judicial order passed by a court of competent jurisdiction or an order passed undersection 69 by the Competent Authority as per the Information Technology (Procedure and Safeguards forinterception, monitoring and decryption of information) Rules, 2009, which shall be supported with a copyof such information in electronic form:Provided that 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 theState, friendly relations with foreign States, or public order, or of incitement to an offence relating to theabove 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:Provided further that no order shall be passed in cases where other less intrusive means areeffective in identifying the originator of the information:Provided also that in complying with an order for identification of the first originator, no significant social media intermediary shall be required to disclose the contents of any electronic message,any other information related to the first originator, or any information related to its other users:Provided also that where the first originator of any information on the computer resource of an intermediary is located outside the territory of India, the first originator of that information within theterritory of India shall be deemed to be the first originator of the information for the purpose of this clause.(3)A significant social media intermediary that provides any service with respect to aninformation or transmits that information on behalf of another person on its computer resource–(a)for direct financial benefit in a manner that increases its visibility or prominence, or targetsthe receiver of that information; or(b)to which it owns a copyright, or has an exclusive license, or in relation with which it hasentered into any contract that directly or indirectly restricts the publication or transmissionof that information through any means other than those provided through the computerresource of such social media intermediary,shall make that information clearly identifiable to its users as being advertised, marketed, sponsored,owned, or exclusively controlled, as the case may be, or shall make it identifiable as such in anappropriate manner.(4)A significant social media intermediary shall endeavour to deploy technology-basedmeasures, including automated tools or other mechanisms to proactively identify information that depictsany act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit orimplicit, or any information which is exactly identical in content to information that has previously beenremoved or access to which has been disabled on the computer resource of such intermediary under clause(d)of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such informationstating that such information has been identified by the intermediary under the categories referred to in thissub-rule:Provided that the measures taken by the intermediary under this sub-rule shall be proportionatehaving regard to the interests of free speech and expression, privacy of users on the computer resource ofsuch intermediary, including interests protected through the appropriate use of technical measures:Provided further that such intermediary shall implement mechanisms for appropriate humanoversight of measures deployed under this sub-rule, including a periodic review of any automated toolsdeployed by such intermediary:Provided also that the review of automated tools under this sub-rule shall evaluate the automatedtools having regard to the accuracy and fairness of such tools, the propensity of bias and discrimination insuch tools and the impact on privacy and security of such tools.(5)A significant social media intermediary and an online gaming intermediary who enables the users to access any permissible online real money game shall have a physical contact address in Indiapublished on its website, mobile based application or both, as the case may be, for the purposes ofreceiving the communication addressed to it.(6)A significant social media intermediary and an online gaming intermediary who enables the users to access any permissible online real money game shall implement an appropriate mechanism forthe receipt of complaints under sub-rule (2) of rule 3 and grievances in relation to the violation ofprovisions under this rule, which shall enable the complainant to track the status of such complaint orgrievance by providing a unique ticket number for every complaint or grievance received by suchintermediary:Provided that such intermediary shall, to the extent reasonable, provide such complainant withreasons for any action taken or not taken by such intermediary in pursuance of the complaint or grievancereceived by it.(7)A significant social media intermediary and an online gaming intermediary who enables the users to access any permissible online real money game shall enable users who register for their servicesfrom India, or use their services in India, to voluntarily verify their accounts by using any appropriatemechanism, including the active Indian mobile number of such users, and where any user voluntarilyverifies their account, such user shall be provided with a demonstrable and visible mark of verification,which shall be visible to all users of the service:Provided that the information received for the purpose of verification under this sub-rule shall notbe used for any other purpose, unless the user expressly consents to such use.(8)Where a significant social media intermediary removes or disables access to anyinformation, data or communication link, under clause (b) of sub-rule (1) of rule 3 on its own accord, suchintermediary shall,—(a)ensure that prior to the time at which such intermediary removes or disables access, it hasprovided the user who has created, uploaded, shared, disseminated, or modifiedinformation, data or communication link using its services with a notification explainingthe action being taken and the grounds or reasons for such action;(b)ensure that the user who has created, uploaded, shared, disseminated, or modifiedinformation using its services is provided with an adequate and reasonable opportunity todispute the action being taken by such intermediary and request for the reinstatement ofaccess to such information, data or communication link, which may be decided within areasonable time;(c)ensure that the Resident Grievance Officer of such intermediary maintains appropriateoversight over the mechanism for resolution of any disputes raised by the user under clause(b).(9)The Ministry may call for such additional information from any significant social mediaintermediary as it may consider necessary for the purposes of this part.(10)An online gaming intermediary who enables access to its users to any permissible online real money game, shall display a demonstrable and visible mark of verification of such online game by an online gaming self-regulatory body on such permissible online real money game.(11)While informing the users of its rules and regulations, privacy policy, terms of service and user agreements under clause (b) of sub-rule (1) of rule 3, an online gaming intermediary who enables the users to access any permissible online real money game, shall include the following information in respect of every such online games, namely:—(a)the policy related to withdrawal or refund of the deposit made with the expectation of earning winnings, the manner of determination and distribution of such winnings, and the fees and other charges payable by the user;(b)the know-your-customer procedure followed by it for verifying the identity of the users of such online game;(c)the measures taken for protection of deposit made by a user for such online game; and(d)the framework referred to in rule 4A, relating to such online game.(12)An online gaming intermediary shall, before accepting any deposit in cash or kind from any user for a permissible online real money game, identify such user and verify his identity:Provided that the procedure required to be followed by an entity regulated by the Reserve Bank of India for identification and verification of a customer at the commencement of an account-based relationship shall apply, mutatis mutandis, in identification and verification of the users of such online gaming intermediary.(13)An online gaming intermediary who enables the users to access any permissible online real money game shall not itself finance by way of credit or enable financing to be offered by third party for the purpose of playing such online game.
