We’re pleased to bring our readers Part 2 of the series by Surabhi Pande and Devvrat Joshi looking at the proposed draft amendments to the IT Rules, 2021. The first part looked at two specific proposed provisions and argued that they would impact the ability of intermediaries to avail safe harbour provisions. This second part continues the analysis of the draft amendments, looking at some of the remaining provisions and takes issue with the lack of clarity. Readers may be interested in participating in MEITY’s call for stakeholder feedback by submitting comments which are due by 6th July (30 days from publication of the proposed amendments). Surabhi Pande and Devvrat Joshi are both Senior Associates in the Dispute Resolution Team at Saikrishna & Associates. The views of the authors are personal.
The Amendment to the IT Rules, 2021: Locked, Loaded, and Aimed at the Intermediaries – Part II
Surabhi Pande and Devvrat Joshi
This two-part series looks at and analyses the proposed draft amendment (“Draft Amendment”) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). In the first part, we summarized the proposed amendments and specifically delved into the proposed amendments to Rule 3(1)(a) and (b), arguing that it goes against the Section 79 of the Information Technology Act, 2000 (“IT Act”) as well as the judicially developed principles of intermediary liability and obligations in Shreya Singhal, Kent RO v. Amit Kotak, MySpace v Super Cassettes and Amazon v. Amway.
This post continues the discussion on the Draft Amendment and analyses the remaining proposed amendments.
Should we also be concerned about the other proposed amendments?
While the other proposed amendments are, ostensibly, not as alarming, there is a lack of clarity as to their meaning and scope, and no sound rationale has been put forth by the Government for their inclusion.
For convenience, let’s recap what these proposed amendments are:
1. That all intermediaries shall ensure accessibility to its services and maintain reasonable expectations of due diligence, privacy and transparency.
2. That all intermediaries shall respect the rights of citizens guaranteed under the Constitution of India.
3. That all intermediaries shall act on complaints for removal of content falling under Rule 3(1)(b)(i)-(x) within 72 hours of receipt of complaint.
4. That a Grievance Appellate Committee shall be set-up to hear appeals against decisions of the Grievance Redressal Officer under Rule 3(2).
5. That all intermediaries shall have to comply with the decision of the Grievance Appellate Committee.
A plain reading of the Draft Amendments, the IT Rules, 2021 and the IT Act, makes it evident that these isn’t sufficient clarity or information to enable a fair and effective implementation of the same.
What exactly are the problems or challenges?
Let us take each of these proposed amendments one-by-one in brief and consider them.
All intermediaries shall ensure accessibility to its services and maintain reasonable expectations of due diligence, privacy and transparency
This is a proposed addition in the form of Rule 3(1)(m). On first blush, it is clear that there is no definition of “accessibility”, “privacy” or “transparency” provided anywhere under the IT Rules, the proposed amendment, the IT Act or any rule thereunder.
By itself, this amendment appears to be grounded in good intention – presumably to mandate all intermediaries to develop their platforms and services in such a manner so as to maximize its reach and usability for disabled persons. However, this clarity is missing in the press release as well as in the drafting of the proposed amendments – there is no reference to the Rights of Persons with Disabilities Act, 2016 and there are no standards laid down or guidance provided as to the expected standards of accessibility for an intermediary to follow.
Similarly, the lack of definitions of “privacy” and “transparency” or any laid down standards / guidelines to aid the intermediaries in complying with this provision also adds to the confusion. Oddly, it’s almost as if the drafters forgot about the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“SPDI Rules”) which already lays down the standards and requirements for dealing with sensitive information such as financial records, health information, etc. and also mandates an onus of transparency on entities to clearly ensure that the users are made aware of the purpose of such information, the purpose for which it will be shared (if at all) and to include a mechanism for express consent for the same. Therefore, if the expected standards of “privacy” and “transparency” by the Government are over and above or different or in addition to the ones already laid down under the SPDI Rules, then the same ought to have been specified.
Lastly, in our view, the specific calling out of “due diligence” requirements herein is redundant to the say the least given that the same is already a statutory mandate under Section 79(2)(c) of the IT Act. Again, if the expectations of “due diligence” are over and above or different or in addition to the statutorily mandated requirement, then the same ought to have been specified.
All intermediaries shall respect the rights of citizens guaranteed under the Constitution of India
As per the press release, this requirement has been added because “a number of Intermediaries have acted in violation of constitutional rights of Indian citizens”. This, presumably, is in light of the entire Twitter saga vis-à-vis the IT Rules, 2021 as well as the various actions undertaken by Twitter in direct clash with the Central Government.
All other concerns aside – what’s interesting is that this proposed amendment will put the intermediaries in a catch-22 situation when juggling the issue of rights guaranteed to citizens under the constitution. How does an intermediary on the one hand balance an individual’s right to freedom of speech and expression while on the other hand consider whether to take down the content since it possibly breaches the IT Rules or its own terms and conditions?
This proposed amendment also seems to import on intermediaries an ability to adjudicate content uploaded or made available on its platform by third-party users vis-à-vis their compliance with the Constitution and take appropriate action – in direct contravention of the Shreya Singhal judgment.
All intermediaries shall act on complaints for removal of content falling under Rule 3(1)(b)(i)-(x) within 72 hours of receipt of complaint
The rationale for this, as per the press note, is to prevent content from becoming viral. However, there are three problems we foresee:
1. First, is the problem of practicality – a lot of intermediaries will probably receive thousands of grievances on a daily basis and it’ll be next to impossible, even with technological support, to sift through all of it, identify the ones seeking take down, review, adjudicate and then decide whether to take down or not. All within 72 hours from receipt of the grievance. There are also chances that in the process and given the crunch of a 72-hour deadline – certain grievances may get missed and worse, incorrect decisions may be taken in a hurry to comply with the deadline.
2. Second, is the problem of threat to intermediary safe harbour – as per the various decisions by the courts in India (e.g., Shreya Singhal, Kent RO v Amit Kotak, etc.), intermediaries do not have the wherewithal or ability to adjudicate issues of infringement and decide whether to take down content or not. There are certain situations where the illegality or infringement is glaringly writ on the content itself thereby warranting take down of the content. However, the point here is what about the situations where it is not so black and white. This will lead us to the third problem below.
3. Third and last, is the problem of chilling effect – in order to ensure compliance with the 72-hour deadline, intermediaries may resort to taking down all content against which take down or removal is sought as a matter of first step and then review whether such take down was legitimate / warranted or requires a court order to support the same.
A Grievance Appellate Committee shall be set-up to hear appeals against decisions of the Grievance Redressal Officer under Rule 3(2) and intermediaries shall be bound by such decisions
This, in itself, does not seem problematic, particularly given that this is already the route undertaken 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. However, the portion of the Draft Amendment introducing and dealing with Grievance Appellate Committee (“GAP”) does not lay down anything substantive on the procedures to be followed, how the committee will be set up, who will be the members of the committee and whether it’ll involve industry representatives, what will the scope of its jurisdiction, what kind of complaints will be permitted to be appealed against, what will be the powers of the committee and what kind of orders / directions it can pass, etc.
It also does not cater for any representation from the intermediary in the appeal hearings before it thereby violating the principles of natural justice. This is particularly problematic given that the GAP appears to have been given wide-ranging powers to pass any order(s) or direction(s) against an intermediary, which may include order(s) or direction(s) the implementation of which may not be technologically feasible or possible and thereby needlessly expose the intermediary to contempt actions.
Lastly, if the Central Government wants to follow the same or similar procedure as laid down in Part III of the IT Rules, then it could’ve instead engaged (or can consider engaging, given the amendments haven’t been notified) in a conversation with various intermediaries to try and assess if a self-regulatory body could be created to address appeals against the Grievance Officer decisions, much like the self-regulatory body under Part III of the IT Rules.
So, what’s next?
The Ministry of Electronics and Information Technology (“MEITY”) has invited stake holder and public comments on the Draft Amendment to be submitted by 6th July, 2022. Further, MEITY has already held a round of stakeholder consultation meeting on 23rd June, 2022 to discuss the Draft Amendments.
Presumably, the various intermediary entities will lobby strongly against these Proposed Amendments and in the event the Proposed Draft gets notified without any change or with insignificant changes, it’ll likely result in a slew of litigations (much like the IT Rules, 2021 have faced).
In any case, there’s no doubt that the Proposed Draft is dangerous, to say the least, to the intermediary jurisprudence that has been painstakingly developed in India over the last decade and require significant reconsideration by MEITY. In effect, the Proposed Agreements could result in the complete undoing of Shreya Singhal and the subsequent line of decisions – a catastrophic situation for the existing intermediaries in India and a strong deterrent for other foreign intermediaries looking to move into the Indian market.