After a wait of almost five months, the government has made changes to one of the country’s most important laws for regulating internet platforms. Now, the government has given itself the power to appoint a quasi-judicial body which will hear user appeals against the content moderation decisions of digital intermediaries.
When the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules were first notified last year, it sparked a big debate on whether the government was trying to overreach with the legislation. Various social media platforms and news publishers clashed with the Union government regarding compliance norms and various provisions of the IT Rules 2021. Some had also moved court challenging the rules.
Although eventually intermediaries came round, the Union government still had some reservations in the way the rules were 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”.
And the government has done exactly that, by giving itself more powers in the digital domain to ensure enforcement via the amendments. Here’s a closer look at what the amendments really mean for both digital intermediaries and users.
What are the new additions to the IT Rules?
The draft amendment, first, brings in additional rules that require intermediaries to respect “rights guaranteed to users under the Constitution of India”. Second, it brings in new grievance appellate committees that give users an additional mechanism to appeal decisions made by grievance officers of intermediaries. Third, it has proposed a change in the grievance redressal mechanism. This will require intermediaries to address any complaint regarding removal of content from a platform within 72 hours.
What does it mean for users?
For users, these amendments provide a separate platform where they can appeal decisions of intermediaries, ranging from Facebook to an e-commerce company like Amazon, when it comes to user grievances. These grievance appellate committees will take a decision on the grievance and the intermediary will have to comply with that.
The new amendments also bring in provisions that direct intermediaries to publish their privacy policy and user agreements in all official Indian languages, in a bid to make such key policies accessible to non-English speakers.
What will grievance appellate committees do?
When a user appeals to a GAC against the decision of a digital intermediary, the government-appointed panel will make an effort to resolve the dispute within 30 days. For this, the GAC can also seek assistance from any person having requisite qualification, experience and expertise in the subject.
However, as the IT Rules amendment allows appeals against decisions on a vast range of content, be it misinformation about financial services, e-commerce products, et al, a huge volume of diverse complaints are expected to be filed. In that case, the GAC—which will operate via a digital platform—will redirect such grievances to relevant tribunals or regulatory bodies, according to Union electronics and IT minister Rajeev Chandrasekhar.
How will they be constituted?
The IT Rules amendment states that a GAC will consist of a chairperson and two whole-time members appointed by the Centre, of which one will be a government official and two will be independent members. MeitY has said that it will soon come out with a more comprehensive directive on the structure of GACs.
Does the amendment give overreaching powers to the government?
“Imagine the Indian government with veto power on what stays and goes on social media, based on the complaint of another user. This is not regulation, it is direct executive control that presents risks of censorship. Also, how will the cases be picked? Will orders be published?” asked internet activist and lawyer Apar Gupta.
The government has said that it was forced to bring about the amendment as digital intermediaries were not doing enough to redress user grievances and ensure their safety on the internet.
Chandrasekhar told Moneycontrol, “I have said very clearly the government has absolutely no intention, no desire to become the ombudsman of the internet. And the only reason we are talking about this is because we have got lakhs of citizens saying that the grievance redressal mechanism was not working well enough.”
Can social media platforms still de-platform users?
Although the rules don’t mention anything specifically about the power of intermediaries to boot users off a platform, they state that the digital intermediaries have to respect Article 19 of the Constitution (right to freedom of expression).
While the GACs will have the final word on specific pieces of content (information and website links) on the platforms, the rules do not cover the removal of user accounts.
What happens if a digital intermediary does not comply with a GAC decision?
One of the most important legal provisions that allows digital intermediaries like social media platforms and e-commerce aggregators to operate is ‘safe harbour’ protection. This means the digital intermediaries are not liable to be punished for actions of users on the platforms.
However, Rule (7) of the law that was notified last year said that an intermediary will lose this protection if they do not follow its mandates. According to the government, non-compliance with a GAC decision would mean an intermediary is not complying with the rules, and hence might lose its safe harbour protection.
It has also said that although there are no punitive provisions for non-compliance with GAC decisions as yet, the government won’t hesitate to bring such sections in the future.
What are the other significant provisions of last year’s IT Rules?
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 a chief compliance officer, a nodal person for coordination and a grievance officer. It also required SSMIs to trace the first originator of information on its platform. SSMIs are platforms with over 5 million subscribers.
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