The Ministry of Electronics and Information Technology (“MeitY”), on 6th June, 2022, published proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”), which were notified on 25th February, 2021, for public consultation and stakeholder comments.
As per MeitY’s Press Note, the amendments have been proposed to provide additional avenues for grievance redressal, apart from courts, and new accountability standards for Intermediaries to ensure that Constitutional rights of Indian citizens are not contravened by any “Big-tech platform”.
Applicability: The proposed amendments are directly applicable to all Intermediaries, specifically Big-Tech Platforms and Significant Social Media Intermediaries (“SSMI”).
- Additional sub-rules, namely, Rule 3(1)(m) and Rule 3(1)(n), have been introduced for the purposes of requiring Intermediaries to respect the rights guaranteed to users under the Constitution of India, as well as to ensure their reasonable expectation of due diligence, privacy and transparency.
- The timeline for grievance redressal by the Intermediaries has been reduced for complaints received in the nature of request for removal of information or communication link from 15 days to 72 hours of the receipt of the user’s complaint. Other complaints can be addressed within 15 days.
- Intermediaries have been allowed to implement any safeguards to prevent any misuse of the grievance redressal mechanism by users.
- Lastly, creation of a Grievance Appellate Committee has been suggested. This committee will consist of a chairperson and other members, as may be appointed by the Central Government, and will deal with appeals by users against the decision of the Grievance Officer appointed by the Intermediary. Intermediaries will be required to comply with all the orders of this committee.
- The Press Note and a footnote appended to amended IT Rules, 2021 clarify that the Grievance Appellate Committee will be set up to provide alternative redressal mechanism. However, a user has the right to approach the courts at any time.
The proposed amendments go beyond the scope of Section 79 of the Information Technology Act, 2000 (“IT Act”), and introduce high standards of compliance for all Intermediaries, not just SSMIs. The draft amendments effectively require all Intermediaries to put in place an active content monitoring/filtration process to ensure that their users do not host, display, upload, modify, publish, transmit, store, update or share any offending information as prohibited under Rule 3(1)(b). This requirement goes against the principle enshrined in the IT Act that as long as Intermediaries ensure necessary due diligence requirements they will be protected under the safe harbour as they are deemed to not have ‘actual knowledge’ of legal violations within their resources. Further, in order to avoid any liability under the amended IT Rules, 2021, Intermediaries may end up over-censoring and over-moderating the content on their platform. Furthermore, an action taken by an Intermediary as part of its filtration process, such as blocking of a user account, may be construed to be a violation of the constitutional right of freedom of speech and expression, thus violating the mandate under the proposed Rule 3(1)(n) of upholding the constitutional rights of all citizens. Reduction of timelines for redressal of complaints places unnecessary regulatory burden on Intermediaries.
In our opinion, the Government’s attempt to provide the Grievance Redressal Committee with “adjudicatory powers” of a court/tribunal without any enabling law is an exercise of excessive delegation, contrary to and in violation of the provisions of the IT Act and the principle of separation of powers enshrined in the Constitution of India.
Interestingly, the IT Rules, 2021 have been challenged before multiple High Courts and clubbed together for consideration by the Supreme Court. Accordingly, amendment of IT Rules, 2021 should, at the very least, be avoided during pendency of the petitions.
Link to MeitY’s Press Note and the proposed amendment to IT Rules – https://www.meity.gov.in/writereaddata/files/Press%20Note%20dated%206%20June%2022%20and%20Proposed%20draft%20amendment%20to%20IT%20Rules%202021.pdf
Link to IT Rules, 2021 – https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf