Explained | Changes to IT rules, 2021

Why has the Ministry of Electronics and Information Technology sought comments on the draft amendments to the Information Technology Rules 2021 (Guidelines for Intermediaries and Media Code of Ethics digital)? What are the functions of the new grievance appeal committees?

Why has the Ministry of Electronics and Information Technology requested comments on the draft amendments to the Information Technology Rules 2021 (Guidelines for Intermediaries and Media Code of Ethics digital)? What are the functions of the new grievance appeal committees?

The story so far: The Department of Electronics and Computing (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Code of Ethics) Rules 2021 (IT Rules, 2021) on October 28. In June 2022, MeitY had published a draft of the amendments and sought comments from affected stakeholders. The project has generated a lot of discussion and commentary on social media regulation in India.

What are the IT rules, 2021?

Governments around the world are grappling with the issue of regulating social media intermediaries (SMIs). Given the multifaceted nature of the problem – the centrality of PMIs in shaping public discourse, the impact of their governance on the right to free speech and expression, the breadth of information they house and the constant technological innovations that impact their governance – it is important for governments to update their regulatory framework to deal with emerging challenges. In order to address these issues, India replaced its decade-old SMI regulations in 2021 with the IT Rules 2021, which was primarily aimed at imposing obligations on SMIs to ensure an open, secure and reliable internet.

What was the need to change the IT rules, 2021?

According to the press note accompanying the draft amendments in June 2022, the stated objectives of the amendments were threefold. First, there was a need to ensure that the interests and constitutional rights of Internet users were not infringed by large technology platforms, second, to strengthen the framework for proper grievance redress, and third, that respect of these has no impact on Indians at the start of their careers. start-ups. This resulted in a set of proposed changes that can be broadly classified into two categories. The first category consisted of imposing additional obligations on SMIs to ensure better protection of users’ interests, while the second category involved the institution of an appeal mechanism for the settlement of grievances.

What are the additional obligations imposed on SMIs?

The notification of final changes includes all the changes it had proposed in June 2022.

First, the original 2021 IT Rules required SMIs to simply inform their users of the “rules and regulations, privacy policy and user agreement” that governed its platforms as well as the categories of content it users are prohibited from hosting, posting, sharing, etc. . On the platform. This obligation of the SMI is now extended to the compliance of its users with the rules of the platform in this area. Additionally, SMIs are required to “make reasonable efforts” to prevent prohibited content from being hosted on their platform by users. To a large extent, this reinforces the responsibility and concomitantly the power of PMIs to control and moderate the content on their platforms. This was met with skepticism by platforms and users given the subjective nature of the discourse and the breadth of information hosted by these platforms. While the SMIs are unaware of the scale of the measures they are now supposed to undertake, users fear that the increased power of the SMIs will allow them to trample on freedom of speech and expression.

Secondly, a similar concern arises with the other newly introduced obligation for SMIs to “respect all the rights granted to citizens by the Constitution, including in Articles 14, 19 and 21”. Given the importance of PMIs in public discourse and the implications of their actions on the fundamental rights of citizens, the horizontal application of fundamental rights is commendable. However, the broad interpretation to which this obligation is open by different jurisdictions, could result in disparate obligations for SMIs. Frequent changes to the design and practices of the platform, which may result from a case-by-case 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 categories of prohibited content as and when a complaint arises. They must delete this information within 72 hours of filing the complaint. Given how viral the content is spreading, this is an important step to contain the spread of content.

Finally, PMI was obliged to “take all reasonable steps to ensure the accessibility of its services to users as well as a reasonable expectation of due diligence, confidentiality and transparency”. While there are concerns that ensuring “accessibility” may require SMIs to deliver services at a scale they are not equipped to deliver, the requirement aims to enhance inclusion in the ecosystem. SMIs, for example by allowing the participation of people with disabilities and of diverse linguistic origins. In this context, the amendments also provide that the “Rules and Regulations, Privacy Policy and User Agreement” of the platform are available in all languages ​​listed in the Eighth Schedule of the Constitution.

What are the new Grievance Appeal Boards?

The cornerstone of empowering users of social media platforms is designing a robust grievance redress mechanism that can effectively and efficiently address their concerns. Prior to the 2021 IT Rules, platforms followed their own mechanisms and timelines for resolving user complaints. The IT rules standardized this by requiring all social media platforms to have a complaints officer who would acknowledge a complaint within 24 hours and deal with it within 15 days. However, the performance of the current grievance redress mechanism has not been optimal. First, as evidenced by transparency reports from SMIs, such as Facebook and Twitter, there is no common understanding of what is meant by complaint resolution. For example, Facebook’s records only mention the number of reports where “appropriate tools” were provided. These “appropriate tools” could simply mean the automated responses indicating the tools available on the platform that were sent to complainants.

Unlike this format, Twitter records show the number of URLs actioned against after a complaint was received.

Furthermore, transparency reports show that the number of user complaints remains quite low compared to the content against which the platform proactively acts or is forced to remove due to government or court orders. This may be because users are unaware of this feature or there is no point in approaching the complaint resolution platform. It may 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.

Further, the existing framework provides no recourse if the complainant is not satisfied with the grievance officer’s order. The only avenue available to the plaintiff may be to challenge the order under the jurisdiction of the High Courts or the Supreme Court. This is not efficient as it can be a resource and time intensive process.

To address this, the government has instituted Grievance Appeals Committees (GACs). The committee is designed as a three-member board of which one member will be a government official (holding the position ex officio) while the other two members will be independent representatives. Users can file a complaint against the grievance officer’s order within 30 days. Importantly, the GAC is required to adopt an online dispute resolution mechanism that will make it more accessible to users.

Interestingly, it is not clear whether this is a mandatory level of appeal or not, i.e. the user will have to go to the Grievance Appeals Committee before go to court. The confusion stems from the fact that the press note expressly stated that the institution of the GAC would not prevent the user from going directly to court against the order of the clerk. However, the final amendments do not provide any indication of this.

While this makes the internal grievance mechanism more accountable and the appeal mechanism more accessible to users, appointments made by central government could give rise to concerns about bias in moderating content.

Further, the 2021 IT Rules do not give any explicit power to the GAC to enforce its orders. Finally, if users can address both the courts and the GAC in parallel, this could lead to contradictory decisions often undermining the impartiality and merit of one institution or the other.

The author is a researcher at the Center for Applied Law and Technology Research, Vidhi Center for legal policy

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