‘Bug fixes’ in the Information Technology Rules, 2021?

July 21, 2022
Information Technology

By Ananyaa Banerjee and Girishma Sai Chintalacheruvu

The Ministry of Electronics & Information Technology (MeitY) rolled out a new set of IT Rules, 2021 on May 26th, 2021, primarily focusing on creating significant provisions for setting up a comprehensive grievance mechanism for social media users and to regulate content being generated therein. The rationale was to impose accountability on social media and internet providers, which have more than five million users, termed as Significant Social Media Intermediary (“SSMI”). For more information on these rules, you may access our comprehensive article on the same here.

One year into the implementation of the said rules, the MeitY on June 06, 2022 had rolled out a set of amendments and have sought for comments from the public, open for 30 days, i.e. till July 06, 2022. The amendments come in light of the practical implementation of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 and to fill in the gaps and maximize its effectiveness and efficiency in the Indian digital ecosystem.

Existing Features

The rules essentially defines ‘intermediaries’ as entities that store or transmit data on behalf of other persons and include telecom and internet service providers, online marketplaces, search engines, and social media sites. Further, it lays down certain due diligence requirements that each of such intermediaries are expected to comply, subject to which they shall be exempted from any form of liability for user-generated content. These due diligence requirements prima facie include:

  1. Sufficiently apprising its user about all rules, regulations, privacy policies, terms and conditions, etc. that may have been set in place by such intermediaries for their user to be able to avail the services offered by them.
  2. Formulation of a mechanism that enables the removal of content as per the government or the court, in an expedited manner.
  • Setting up a grievance redressal mechanism to resolve complaints by users
  1. Facilitating the tracking down of the identification of the first originator of any information published online, however, only under specific circumstances.

Key Proposed Changes to the Information Technology Rules

Setting up of Grievance Appellate Committee

The driving force behind proposing amendments to the existing rules is to ensure the smooth resolution of grievances, up to the point of user satisfaction. With this setting the tone, the draft proposes the creation of individual government-appointed appeal committees to adjudicate matters related to content moderation across social media and other internet platforms.

With a view to make the recourse for users more functional, the proposal of the establishment of a dedicated Grievance Appellate Committee (GAC) has been put forth. While in present day, the only alternative a dissatisfied user has in order to appeal against any decision related to content moderation (taken by the company’s grievance officer), is to approach the courts. However, with the introduction of GAC, the MeitY aims to shift the responsibility of bringing a problem to its logical conclusion, from the company, to the laws of the land in a two-fold manner, and concurrently also decrease the load on Courts.

Additional Responsibilities on Grievance Officers

The proposal also seeks for a quicker redressal of matters, which inter alia involves issues related to intellectual property, national integrity, etc. Currently, company grievance officers typically have about 15 days to act on a user complaint and resolve it. However, in the aforementioned circumstances, such grievances are expected to be dealt with at an expedited rate, i.e. within 72 hours of the complaint being raised.

Recognition of user’s constitutional rights

Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors.[1] led the citizens (and in this case, the netizens) of India to enjoy the fundamental right to privacy. Thus, with the proposal of amendments, the MeitY has inter alia expressed that the implementation of the amendments in discussion would enable them to actually enforce the requirements of the Information Technology Rules, 2021 in letter and spirit, further expressing that the main focus behind the introduction of the said amendments is to ensure that the constitutional rights of Indian citizens are not contravened by any big tech platform by ensuring new accountability standards.

General Public Views

With the last date to turn in comments and inputs on the draft in discussion, lapsing on July 06, 2022, the internet in the meantime, did see a rather mixed reaction towards the reception of the proposals.

Ostensibly, it appears that the proposed introduction of the GAC was welcomed by many, as it was viewed to be a regulatory authority that would act independent of in-house grievance officers; the advantage being that it would adjudicate such complaints, subjecting them to applicable Indian laws and fundamental rights of Indian citizens/netizens along with the policies set in place by the relevant intermediaries, thereby protecting the rights of Indian netizens.

However, the execution of orders issued by the GAC was a cause of concern for some, largely due to the lack of clarity in this aspect, as ultimately, despite obtaining an order from the GAC, it is the intermediary that the user would have to approach. Moreover, this line of thought also brought to light questions regarding the willingness of intermediaries to comply with the requirements outlined in the Rules.

Non-compliance by intermediaries may bring to India, a situation much like the one created in the European Union, where the introduction of the EU General Data Privacy Regulations (GDPR) sent chills down the spines of giants such as Facebook and Instagram owing to the extensive compliances set out by the GDPR for such intermediaries to comply.[2] While EU has the resources and confidence to accept and express indifference towards the warning of sorts, solicited by Meta (inter alia hinting at the suspension of their social media services in the EU in light of their reluctance to conform to the GDPR), it is indeed a cause of concern should a situation like that arise in India. This is because a large chunk of the Indian audience relies heavily on these very platforms, and they in all likelihood may take a big hit if intermediaries, such as Meta were to withdraw their social media services from India.

Additionally, another view also included concerns with respect to the power of the government to get content removed under the garb of harm to national integrity. More so, as this power, read with Section 69 of IT Act[3], would raise questions with respect to the government’s accountability in so many ways.

Now that the comments of the public are under scrutiny and due consideration, time will tell how the said Rules would play out in the Indian scenario and how its implementation affects the process of dealing with content moderation online, while accounting for user rights.

[1] Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161

[2] Read more at https://ssrana.in/articles/ban-google-analytics-data-privacy-eu/

[3] Orders to take down content under Section 69 of the IT Act are not public

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Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018

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