What are the IT Rules Amendments of 2022?

Introduction

The Ministry of Electronics and Information Technology (“MEITY”), on 6^th June 2022, issued a press release along with a proposed draft amendment (“Draft Amendment”) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”).

What are these IT rules?

The Union Ministry had introduced the IT Rules which stem from Section 87(2) of the Information Technology Act 2000. The IT Rules supersede the earlier guidelines issues in 2011. The main focus has been to make social media intermediaries such as Meta (formerly Facebook), Google, Telegram and certain intermediaries which can act as social media platforms to be more responsible for the content shared with greater vigilance on these media sites.

The IT Rules provide that every social media platform with more than 5 million users needs to submit monthly compliance reports illustrating the complaints received and the steps taken to overcome them. It had proposed that such intermediaries would need to have a chief compliance officer based out of India and a nodal contact person who would coordinate with the law enforcement bodies. These IT Rules and greater burden on the social media giants have been to allow the ordinary media users greater safety and freedoms guaranteed under the Constitution of India.

What Changes Have been Made?

The Central government on 28^th October notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules of 2021, thereby it published the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 in the official gazette

The main changes introduced are

The Amendment introduced Rule 3A, which provides for setting up of Grievance Appellate Committee (Committee). Rule 3A says “The Central Government shall, by notification, establish one or more Grievance Appellate Committees within three months from the date of commencement of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022,”
Rule 3A (2), each Grievance Appellate Committee shall consist of a chairperson and two whole-time members appointed by the Central Government, of which one shall be a member ex-officio and two shall be independent members
If aggrieved by a decision of the Grievance Officer the party may prefer an appeal to the Committee within a period of thirty days from the date of receipt of communication from the Grievance Officer
While dealing with such an appeal if the Committee feels necessary, it may seek assistance from any person having requisite qualifications, experience and expertise in the subject matter.
There would be an online dispute resolution process where the entire appeal process, from the filing of the appeal to the decision, would be conducted digitally.
Every Social Media Intermediary shall comply with the decision of the Committee and publish the compliance report on its website.
Social media intermediaries must ensure that users comply with due diligence requirements laid down under the IT Rules, 2021.
The intermediaries must ensure that their users read the policy, rules, regulations, policies and user agreements published on their website and comply with them.
The intermediaries are to acknowledge the complaint within 24 hours and resolve the same within a period of 15 days. However, the complaints in the nature of obscene, pornographic, content harming children, and impersonating someone, the matter against the reasonable restriction under article 19(3) shall be taken down when requested within 24 hours.

What Are the Potential Impacts of the Amendment?

Even when the Amendment was first introduced in 2021 it drew severe criticism from social media holders as it was overly invasive of their freedom of speech and expression which includes the Freedom of Press under Article 21 of the Constitution.

The current Amendment may draw mixed reactions for the following

Section 3(iii) (m) states that “All intermediaries shall ensure accessibility to its services and maintain reasonable expectations of due diligence, privacy and transparency.” The definition of words transparency, privacy and due diligence have not been defined under the Rules. This causes ambiguity and difficulty for the intermediaries to ascertain which standards need to be maintained to ensure that privacy and transparency is maintained.
Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”) have been in existence which lay down the standards and guidelines for dealing with personal information. It requires the entity to clearly explain to the parties the purpose of such information, and the reason why it might be shared and also requires their expressed consent. Unless the new Rules are looking for a different standard of rules and regulations such requirements must be clearly expressed.
Section 79(2) (c) of the IT Act already deals with the due diligence requirement. Unless anything additional or different is asked for such provision could be avoided.
On one hand the intermediaries must uphold constitutional freedom to all citizens by granting them the freedoms under Article 19. In contrast, the same media platforms need to ensure the content does not infringe upon the privacy of the person. It is not clear how such media houses will maintain the balance. More importantly, the Shreya Singhal v Union of India seems to face a direct violation. The media intermediaries need to breach the encryption and scrutinise and review the content of each and every person. This is to ensure that they comply with the said terms and conditions. If necessary, the entities can adjudicate and take down offensive matters. The cited case was completely against such scrutiny by the media platforms and allowed the freedom of speech and expression.
The intermediaries need to take notice of complaints within 24 hours and resolve them within 15 days. In case of matters concerning obscene pornographic content the request for removal has to comply within 24 hours. As such media homes like Twitter, and Instagram is giant companies which receive volumes of information. It would be quite impracticable for them to search and revise each and every piece of content before uploading it. Hasty and incorrect decisions can also be passed due to time constraints.
The problems of GAP have already been addressed in Part III of the IT Rules wherein a three-tiered system for resolution and escalation of grievances vis-à-vis publishers of curated and news content has been laid down. Plus there is no representation from the side of the intermediary which is a gross violation of the principle of Audi Alteram Partem. The decisions of the Grievance Officer could be appealed against. This would open n floodgate of appeals as more and more people dissatisfied with the decisions chose to appeal against. This would also undermine the power of such an Officer and increase the burden of the GAP.

What Comes Next?

The Rules are in theory for the betterment of society and its citizens. It upholds the golden triangle of Articles 14, 19 and 21 of the Constitution. However, the loopholes cannot be ignored and need further work. This could pose problems on the side of intermediaries and especially foreign entities wishing to invest in the Indian Market. A balance must be struck between practicality, freedom of expression, and the welfare of citizens.

Author: Dipanwita Chakraborty, Legal Trainee at PA Legal.

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