Section 3 in Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
3. Due diligence
(1)Due diligence by an intermediary:An intermediary, including a social media intermediary, a significant social mediaintermediary and an online gaming intermediary, shall observe the following due diligence while discharging itsduties, namely:—(a)the intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policyand user agreement in English or any language specified in the Eighth Schedule to the Constitution for access or usage of its computer resource by any person in the language of his choice and ensure compliance of the same;(b)the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts by itself, and to cause the users of its computer resource to not host, display, upload, modify, publish, transmit, store, update or share any information that,—(i)belongs to another person and to which the user does not have any right;(ii)is obscene, pornographic, paedophilic, invasive of another‟s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or an online game that causes user harm, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;(iii)is harmful to child;(iv)infringes any patent, trademark, copyright or other proprietary rights;(v)deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature or, in respect of any business of the Central Government, is identified as fake or false or misleading by such fact check unit of the Central Government as the Ministry may, by notification published in the Official Gazette, specify;(vi)impersonates another person;(vii)threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitementto the commission of any cognisable offence, or prevents investigation of any offence, or is insulting other nation;(viii)contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computerresource;(ix)is in the nature of an online game that is not verified as a permissible online game;(x)is in the nature of advertisement or surrogate advertisement or promotion of an online game that is not a permissible online game, or of any online gaming intermediary offering such an online game;(xi)violates any law for the time being in force.Explanation.—In this clause, “user harm” and “harm” mean any effect which is detrimental to a user or child, as the case may be;‟;(c)an intermediary shall periodically inform its users, at least once every year, that in case ofnon-compliance with rules and regulations, privacy policy or user agreement for access orusage of the computer resource of such intermediary, it has the right to terminate the accessor usage rights of the users to the computer resource immediately or remove non-compliantinformation or both, as the case may be;(d)an intermediary, on whose computer resource the information is stored, hosted orpublished, upon receiving actual knowledge in the form of an order by a court ofcompetent jurisdiction or on being notified by the Appropriate Government or its agencyunder clause (b) of sub-section (3) of section 79 of the Act, shall not host, store or publishany unlawful information, which is prohibited under any law for the time being in force inrelation to the interest of the sovereignty and integrity of India; security of the State;friendly relations with foreign States; public order; decency or morality; in relation tocontempt of court; defamation; incitement to an offence relating to the above, or anyinformation which is prohibited under any law for the time being in force:Provided that any notification made by the Appropriate Government or its agencyin relation to any information which is prohibited under any law for the time being in forceshall be issued by an authorised agency, as may be notified by the Appropriate Government:Provided further that if any such information is hosted, stored or published, theintermediary shall remove or disable access to that information, as early as possible, but inno case later than thirty-six hours from the receipt of the court order or on being notified bythe Appropriate Government or its agency, as the case may be:Provided also that the removal or disabling of access to any information, data orcommunication link within the categories of information specified under this clause, underclause (b) on a voluntary basis, or on the basis of grievances received under sub-rule (2) bysuch intermediary, shall not amount to a violation of the conditions of clauses (a) or (b) ofsub-section (2) of section 79 of the Act;(e)the temporary or transient or intermediate storage of information automatically by anintermediary in a computer resource within its control as an intrinsic feature of thatcomputer resource, involving no exercise of any human, automated or algorithmic editorialcontrol for onward transmission or communication to another computer resource shall notamount to hosting, storing or publishing any information referred to under clause (d);(f)the intermediary shall periodically, and at least once in a year, inform its users in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice of its rules and regulations, privacy policy or user agreement or any change in the rules and regulations, privacy policy or user agreement, as the case may be; [Substituted by Amendment Rules 2022]Provided that an online gaming intermediary who enables the users to access any permissible online real money game shall inform its users of such change as soon as possible, but not later than twenty-four hours after the change is effected;(g)where upon receiving actual knowledge under clause (d), on a voluntary basis on violationof clause (b), or on the basis of grievances received under sub-rule (2), any information hasbeen removed or access to which has been disabled, the intermediary shall, withoutvitiating the evidence in any manner, preserve such information and associated records forone hundred and eighty days for investigation purposes, or for such longer period as maybe required by the court or by Government agencies who are lawfully authorised;(h)where an intermediary collects information from a user for registration on the computerresource, it shall retain his information for a period of one hundred and eighty days afterany cancellation or withdrawal of his registration, as the case may be;(i)the intermediary shall take all reasonable measures to secure its computer resource andinformation contained therein following the reasonable security practices and procedures asprescribed in the Information Technology (Reasonable Security Practices and Proceduresand Sensitive Personal Information) Rules, 2011;(j)the intermediary shall, as soon as possible, but not later than seventy two hours and in case of an online gaming intermediary who enables the users toaccess any permissible online real money game not later than twenty-four hours of the receipt of an order, provide information under its control or possession, or assistance to theGovernment agency which is lawfully authorised for investigative or protective or cybersecurity activities, for the purposes of verification of identity, or for the prevention,detection, investigation, or prosecution, of offences under any law for the time being inforce, or for cyber security incidents:Provided that any such order shall be in writing stating clearly the purpose ofseeking information or assistance, as the case may be;(k)the intermediary shall not knowingly deploy or install or modify technical configuration ofcomputer resource or become party to any act that may change or has the potential tochange the normal course of operation of the computer resource than what it is supposed toperform thereby circumventing any law for the time being in force:Provided that the intermediary may develop, produce, distribute or employtechnological means for the purpose of performing the acts of securing the computerresource and information contained therein;(l)the intermediary shall report cyber security incidents and share related information with theIndian Computer Emergency Response Team in accordance with the policies andprocedures as mentioned in the Information Technology (The Indian Computer Emergency Response Team and Manner of Performing Functions and Duties) Rules, 2013.(m)the intermediary shall take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency; [inserted by 2022 Amendment Rules](n)the intermediary shall respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21. [inserted by 2022 Amendment Rules](2)Grievance redressal mechanism of intermediary:(a)The intermediary shall prominently publish on its website,mobile based application or both,as the case may be, the name of theGrievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or sub-rules (11) to (13) of rule 4, or in respect of any other matterspertaining to the computer resources made available by it, and the Grievance Officer shall -(i)acknowledge the complaint within twenty-four hours and resolve such complaint within a period of fifteen days from the date of its receipt:Provided that the complaint in the nature of request for removal of information or communication link relating to clause (b) of sub-rule (1) of rule 3, except sub-clauses (i), (iv) and (xi), shall be acted upon as expeditiously as possible and shall be resolved within seventy-two hours of such reporting;Provided further that appropriate safeguards may be developed by the intermediary to avoid any misuse by users;(ii)receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.(b)The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any 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 suchindividual in any sexual act or conduct, or is in the nature of impersonation in an electronicform, including artificially morphed images of such individual, take all reasonable andpracticable measures to remove or disable access to such content which is hosted, stored,published or transmitted by it:(c)The intermediary shall implement a mechanism for the receipt of complaints underclause(b)of this sub-rule which may enable the individual or person to provide details, as may benecessary, in relation to such content or communication link.Explanation.—In this rule, “prominently publish” shall mean publishing in a clearly visible manner on the home page of the website or the home screen of the mobile based application, or both, as the case may be, or on a web page or an app screen directly accessible from the home page or home screen.
