- The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) recently.
- In June 2022, MeitY had put out a draft of the amendments and solicited feedback from the relevant stakeholders. The draft generated considerable discussion and comment on the regulation of social media in India.
What are the IT Rules, 2021?
- World over, governments are grappling with the issue of regulating social media intermediaries (SMIs).
- Given the multitudinous nature of the problem — the centrality of SMIs in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance — it is important for governments to update their regulatory framework to face emergent challenges.
- In a bid to keep up with these issues, India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021 that were primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.
What was the need to amend the IT Rules, 2021?
- The stated objectives of the amendments were three-fold.
- First, there was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms, second, to strengthen the grievance redressal framework in the Rules, and third, that compliance with these should not impact early stage Indian start-ups.
- This translated into a set of proposed amendments that can be broadly classified into two categories. The first category involved placing additional obligations on the SMIs to ensure better protection of user interests while the second category involved the institution of an appellate mechanism for grievance redressal.
What are the additional obligations placed on the SMIs?
- The notification of the final amendments carry forward all the amendments that it had proposed in June 2022.
- This obligation on the SMIs has now been extended to ensuring that its users are in compliance with the relevant rules of the platform. Further, SMIs are required to make reasonable efforts to prevent prohibited content being hosted on its platform by the users.
- To a large extent, this enhances the responsibility and concomitantly the power of SMIs to police and moderate content on their platforms. This has been met with skepticism by both the platforms and the users given the subjective nature of speech and the magnitude of the information hosted by these platforms.
- While the SMIs are unclear of the extent of measures they are now expected to undertake, users are apprehensive that the increased power of the SMIs would allow them to trample on freedom of speech and expression.
- Second, a similar concern arises with the other newly introduced obligation on SMIs to respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21.
- Given the importance of SMIs in public discourse and the implications of their actions on the fundamental rights of citizens, the horizontal application of fundamental rights is laudable. However, the wide interpretation to which this obligation is open to by different courts, could translate to disparate duties on the SMIs.
- Frequent alterations to design and practices of the platform, that may result from a case-to-case based application of this obligation, could result in heavy compliance costs for them.
- Third, SMIs are now obligated to remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises. They have to remove such information within 72 hours of the complaint being made. Given the virality with which content spreads, this is an important step to contain the spread of the content.
- Lastly, SMIs have been obligated to take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency.
- While there are concerns that ensuring “accessibility” may obligate SMIs to provide services at a scale that they are not equipped to, the obligation is meant to strengthen inclusion in the SMI ecosystem such as allowing for participation by persons with disabilities and diverse linguistic backgrounds.
What are the newly-introduced Grievance Appellate Committees?
- The cornerstone of empowering users of social media platforms is to design a robust grievance redressal mechanism that can effectively and efficiently address their concerns.
- Prior to the IT Rules, 2021, platforms followed their own mechanisms and timelines for resolving user complaints. The IT Rules uniformed this by mandating that all social media platforms should have a grievance officer who would acknowledge the receipt of a complaint within 24 hours and dispose it within 15 days. However, the performance of the current grievance redressal mechanism has been sub-optimal.
- To remedy this, the government has instituted Grievance Appellate Committees (GAC). The committee is styled as a three-member council out of which one member will be a government officer (holding the post ex officio) while the other two members will be independent representatives.
- Users can file a complaint against the order of the grievance officer within 30 days. Importantly, the GAC is required to adopt an online dispute resolution mechanism which will make it more accessible to the users.