Analysis of the Draft Amendment to the Information Technology (Intermediary Guidelines and Digital

Introduction

On 25th February 2021, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021(“Intermediary Guidelines”) were issued. On 6th June 2022, the Ministry of Electronics and Information Technology released a press note inviting public feedback and suggestions on the Draft Amendment of Intermediary Guidelines (“Amendment”). The press note issued by the government state the broad principles on which the amendments are proposed which are as follows:

• Intermediaries should uphold the provisions of the Indian Constitution and follow them in letter and spirit

• The Internet should be a safe, trusted, and accountable space for all citizens of India

• Provide for a grievance redressal mechanism to protect the interests and rights of the users apart from court

• Removal of unlawful and harmful information violative of terms and conditions reported by users.

Amendments to the Intermediary Guidelines

1. Ensuring compliance with user agreements

Rule 3(1)(a) of the Intermediary Guidelines 2021, mandates the intermediary to publish the rules and regulations, privacy policy, and user agreement on their website. The phrase “ensure compliance of the same” has been proposed to be inserted vide this Amendment to Rule 3(1)(a). The legislature's intent behind this Amendment is unclear since the ambit of compliance that is required is not clearly worded. On reading the said provision it is unclear as to whether the legislature had intended the intermediary to pre filter the content that is going to be published by the user in violation of the user agreement or whether the intermediary should remove the contents that violate the user agreement. On perusal of the proposed Amendment, it does seem like “compliance of the same” intense that the intermediaries should take down the content that is in violation of the user agreement

2. Informing the users about privacy policy and user agreement and cause the user not to publish content that violates Rule 3(1)(b)

Before the proposed Amendment, it was just sufficient for the intermediaries to publish the rules and regulations, privacy policy, and user agreement on their website. The Amendment proposes to amend Rule 3(1)(b) by mandating the intermediaries to also inform the users about the same. Interestingly the Amendment also mandates the intermediary to “cause the user” to not publish content that violates Rule 3(1)(b). It is unclear whether the legislature through the Amendment intends the intermediary to pre filter content or develop tools to prevent the user from publishing content that violates Rule 3(1)(b) of Intermediary Guidelines, 2021.

3. Reasonable measures to provide transparency, accessibility, and privacy

Rule 3(1)(m) which is proposed to be included vide the Amendment, creates a responsibility on the intermediaries to take all reasonable measures to ensure accessibility of its services to users along with a reasonable expectation of due diligence, privacy, and transparency. The meaning of the word accessibility is not defined under the Amendment and poses an ambiguity whether the legislators intended to make the intermediary services accessible to differently abled people under the Rights of Persons with Disabilities Act, 2016, and the lack of guidelines for making the services accessible makes the compliance harder for the intermediaries. Instead of laying down the detailed measures that the intermediaries are required to comply with to make their services accessible to the users, the Amendment has required to take “reasonable measures” which is a very subjective term that would create an ambiguity in the enforcement of this provision.

4. The intermediary should respect the Fundamental Rights accorded to citizens guaranteed by the Constitution of India

Rule 3(1)(n) which is proposed to be inserted vide the Amendment, creates a responsibility on the intermediary to respect the rights of the citizen accorded under the Constitution. This particular clause is proposed to be inserted by the Legislature keeping in mind the past abuse of the rights of the citizen by the intermediaries. Since fundamental rights can only be enforced against a state and in the absence of judicial precedents in favour of the enforceability of fundamental rights against intermediaries, the legislature remedied this situation by inserting it as a legal provision under the Intermediary Guidelines itself. This particular provision is intended to make the intermediaries compliant with the rights accorded to the citizens under the Constitution and any breach of fundamental rights by the intermediary is a violation under the proposed Rule 3(1)(n).

5. Removal of content by Grievance officer within 72 hours of reporting.

Prior to the proposed Amendment of Rule 3(2)(i) the grievance officer was only required to acknowledge the complaint within 24 hours and dispose of the complaint within 15 days from the receipt of the complaint. A proviso is proposed to be inserted which mandates the grievance officer to act expeditiously within 72 hours from the date of receipt of the complaint in the nature of the request for the removal of information or communication link relating to sub-clauses (i) to (x) of the clause (b) under sub-rule (1) of rule 3 of Intermediary Guideliens,2021. The primary intention behind the legislature in providing expedited timelines for disposal of complaints is to prevent the content from spreading virally and ensure the removal of the content without causing much damage to the aggrieved person. This provision however ignored the rulings in the case of Shreya Singhal v. Union of India and Kent RO Systems Ltd v. Amit Kotak & Ors that had clearly held that an intermediary should not on its own, screen all information being hosted on its portal for infringement of the rights of all those persons who have at any point of time complained to the intermediary. Since this provision negates the ratio laid down in the Shreya Singhal case this provision can be read down by the Judiciary if this provision is challenged. The apparent side effect of a strict timeline would also result in taking down all content for which a complaint has been filed and the intermediary should devise appropriate safeguards to avoid any misuse by the users such as false complaints as provided under the second proviso of Rule 3(2), Intermediary Guidelines,2021.

6. Constitution of Grievance Appellate Committee to hear appeals from an order passed by the Grievance officer.

Rule 3(3) has been proposed to be inserted vide this Amendment to create an appellate body to hear appeals from the order passed by the Grievance Officer. Such an appeal should be made within 30 days from the order of the Grievance Officer and the grievance appellate committee should dispose of the appeal within 30 days from the receipt of the appeal. The proposed Amendment does not provide for any qualifications of the members who would constitute the grievance appellate committee. The Amendment does not provide for any procedure and powers of the Grievance Appellate Committee. It is to be noted that there is no enabling provision provided under amended Rule 3(3) for the Grievance Appellate Committee to frame its own rules and procedure. The absence of these would cause serious ambiguity as to the orders that the grievance appellate committee can pass. Thus, the legislature must define the powers of the committee to effectively implement the purpose of the constitution of the Grievance Appellate Committee.

Conclusion

The Amendment is trying to implement the principles laid down in the press note. However, the Amendment should also try to be more specific on the compliance required by the intermediaries to make its service more transparent and accessible. The Union Government‘s proposed Amendment may be well intentioned but it requires more specific provisions for better enforcement of the regulations.