Explained: Why government has proposed amendments to the IT Rules 2021

The Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules which was enforced in February 2021 brought in additional compliance requirements for significant social media intermediaries (SSMIs) such as appointment of chief compliance officer, nodal person for coordination and grievance officer. It also required SSMIs to trace the first originator of information on its platform. SSMIs are platforms with over 5 million subscribers.

The IT Rules also brought in a three-tier system for handling grievances pertaining to streaming services and online news business. At the first level, grievances are handled within the organisation, at the second, a self-regulatory body, and at the third, a government-run committee which can override any decision taken by the other two bodies.

What happened after it was brought in?

In the past year, ever since the IT Rules came into effect in May 2021, various social media platforms, news publishers clashed with the Union government regarding compliance with and various provisions of the IT Rules 2021. A few petitions are also lodged in courts challenging the rules.

Although eventually, intermediaries complied with the rules, the Union government still has had some reservations in the way it was being complied with. This was evident when the Ministry of Electronics and Information Technology (MeitY), while announcing the draft, said that amendments will ensure “actual enforcement of requirements in IT Rules 2021 in letter and spirit”.

What are the proposed amendments? 

In the draft amendment to the IT Rules 2021, the MeitY has brought in a new clause which would require intermediaries to respect ‘rights guaranteed to users under the Constitution of India’.

Second, it brings in a new Grievance Appellate Committee that, the MeitY says, will give an additional mechanism to appeal decisions made grievance officers of intermediaries.

This committee will also have the power to overrule any decision made by grievance officers of intermediaries, including blocking or removal of any user or user account on social media platforms.

Lastly, it has proposed a change in the grievance redressal mechanism, where intermediaries will be required to address grievances regarding content removal from platforms within 72 hours. For other grievances, the existing 15 day timeframe will continue.

Whom will it affect?

This will largely affect the grievance redressal mechanism of  Meta’s Facebook and Instagram, Google including YouTube, Twitter, Telegram and other major social media intermediaries. Essentially, what it means is that a decision made by a grievance officer can now be moved for an appeal by users with the proposed grievance appellate committee.

The government said the committee was being being brought in to provide an alternative mechanism, other than courts, for finding relief regarding matters pertaining to account removals and suspensions. It is not yet known whether the committee will be under the government or an independent body.

Why now? 

In its reasoning for the amendments, MeitY said that “a number of intermediaries have acted in violation of Constitutional rights of Indian citizens”. It also said that there have been numerous instances where intermediaries did not address the grievances “satisfactorily and/or fairly”.

It is important to note that the Union government has been against removal of user accounts from social media platforms. In fact, recently when Twitter co-founder and former CEO Jack Dorsey backed Elon Musk’s plan to reinstate former US President Donald Trump’s Twitter account, MoS for MeitY Rajeev Chandrasekhar had said deplatforming was against fundamental rights of citizens.

“Deplatforming is a big deal – Its a violation of fundamental rights of users n must hv force of law behind it for any platform to exercise n must never ever be done arbitrarily. @elonmusk @jack,” he had said in a tweet. The proposed Grievance Appellate Committee may address issues in this regard.

Where do SSMIs disagree? 

While hearing a court case in 2021, regarding suspension of an account, Twitter had said that it has the right to suspend any account that violates terms. The micro-blogging platform had also  said there was no element of public function involved in the process, and that it was not obligated to further freedom of speech and expression guaranteed under the Indian Constitution.

It is important to note that the amendments have brought in a separate clause of respecting rights of Indian users enshrined under the Constitution.

Is there similar rules outside India?

Last year, State of Texas in United States of America passed a law which made it illegal for social media platforms to ban users "based on their political viewpoints". This was after politicians accused social media platforms of censoring conservative views. However, the US Supreme Court recently blocked the law citing that it is in violation of private companies' freedom of speech rights.

What else do we need to know?

There are numerous cases lodged in several courts across the country regarding the validity of the IT Rules 2021. Several provisions like the traceability mandate of the IT Rules, which would require platforms like WhatsApp, Signal to break encryption, have been challenged. However, recently, the Supreme Court suspended proceedings before the high courts in cases involving Information Technology.

Software Freedom Law Centre, who had assisted in one such petition, is not happy with the amendments.

“We have earlier seen that rules regarding digital media were notified without any public consultation. A number of parties impacted by these rules have challenged them in various courts in India including a challenge by Free Software Community member, Praveen Arimbrathodiyil with assistance from SFLC.in… These proposed amendments have not touched any of the areas of concern,” Prasanth Sugathan, Legal Director of SFLC, said.