The story so far: 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) on October 28. 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?
As per the press note accompanying the draft amendments in June 2022, 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.
First, the original IT Rules, 2021 obligated the SMIs to merely inform its users of the “rules and regulations, privacy policy and user agreement” that governed its platforms along with the categories of content that users are prohibited from hosting, displaying, sharing etc. on the platform. 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. In this context, the amendments also mandate that “rules and regulations, privacy policy and user agreement” of the platform should be made available in all languages listed in the eighth schedule of the Constitution.
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. First, as evidenced by the transparency reports of SMIs, such as Facebook and Twitter, there is no common understanding of what is meant by resolution of the complaint. For example, Facebook records only mention the number of reports where “appropriate tools” have been provided. These “appropriate tools” could just mean the automated replies pointing out the tools available on the platform that have been sent to the complainants.
As opposed to this format, Twitter records outline the number of URLs against which action has been taken after the receipt of a complaint.
Furthermore, transparency reports show that the number of user complaints continue to be quite low when compared to the content against which the platform acts proactively or is obligated to remove due to governmental or court orders. This may be because users are either not aware of this facility or find it futile to approach the platform for complaint resolution. It might also be because, even in cases where action has been taken on the content, there is no way to assess whether the complainant has been satisfied with the resolution of the complaint.
Moreover, the extant framework does not provide for any recourse if the complainant is dissatisfied with the grievance officer’s order. Possibly, the only course available to the complainant is to challenge the order under the writ jurisdiction of the High Courts or Supreme Court. This is not efficacious given that it can be a resource and time intensive process.
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.
Interestingly, it is unclear whether this is a compulsory tier of appeal or not, that is will the user have to approach the grievance appellate committee before approaching the court. The confusion arises from the fact that the press note expressly stated that the institution of the GAC would not bar the user from approaching the court directly against the order of the grievance officer. However, the final amendments provide no such indication.
While this makes the in-house grievance redressal more accountable and appellate mechanism more accessible to users, appointments being made by the central government could lead to apprehensions of bias in content moderation.
Further, the IT Rules, 2021 do not provide any explicit power to the GAC to enforce its orders. Lastly, if users can approach both the courts and the GAC parallelly, it could lead to conflicting decisions often undermining the impartiality and merit of one institution or the other.
The writer is a research fellow at the Centre for Applied Law and Technology Research, Vidhi Centre for legal policy
- 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.
- As per the press note accompanying the draft amendments in June 2022, the stated objectives of the amendments were three-fold.
- 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.
