The capabilities of the Grievance Appellate Committee, over-regulation of online content by the government, requirement of intermediaries to respect fundamental rights are some of the issues international industry bodies have raised concerns with in the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The comments have been submitted industry bodies Asia Internet Coalition, (AIC) and the US-India Strategic Partnership Forum (USISPF) and US-India Business Council (USIBC) in response to the public consultation undertaken by Ministry of Electronics and Information Technology (MeitY) on the proposed amendments.
Why it matters? The Ministry of Electronics and Information Technology had on June 6th released a set of amendments to the existing IT Rules. While AIC’s comments have been viewed by MediaNama, USISPF and USIBC’s comments had been reported by Reuters.
The amendments propose significant changes to the existing rules such as the creation of a Grievance Appellate Committee (GAC) which will have oversight over platforms’ grievance officers’ content moderation decisions, requirements for intermediaries to respect citizens’ ‘constitutional’ rights, ‘ensuring’ that users comply with platform and government policies, and more. Experts and industry stakeholders have previously raised concerns on how the rules could impact free speech, cripple smaller intermediaries, be liable to getting struck down in court and more. USISPF, USIBC, and AIC’s submissions, each of whose members include technology companies like Twitter, Google, Facebook, Apple, can shed light on what major industry stakeholders are telling the IT Ministry.
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AIC’s recommendations on the proposed amendments
1. Impose prohibitions on users for disseminating certain content
The AIC has recommended that mandates prohibiting dissemination of certain types of content be imposed on users. This, it said, in reference to the amendments’ requirements for intermediaries to ensure user compliance with their terms and conditions, privacy policies, etc. and to ’cause the user’ not to host, transmit, distribute, etc. certain types of content.
According to it, the requirements are vague, broad, and may not be practical to achieve. It also says that it could be in a legal grey area, it explains why:
“Additionally, such editorial control and proactive monitoring by intermediaries contradicts the “actual knowledge” requirement under Section 79(3)(b) of the IT Act. The Supreme Court in the case of Shreya Singhal v. Union of India had narrowly interpreted “actual knowledge” and stated that the intermediary must only take down content on receiving Court orders or directions from Government agencies.”
Further, complying with this requirement in the proposed amendments could position the intermediary to “pre-censor content” which could risk safe harbour protections given to them under the Information Technology Act, AIC said. Safe harbour protection involves giving an intermediary protection from liability against unlawful content posted by a third-party (say, a user). It further elaborates on this as follows:
“Section 79(2)(b)(iii) of the IT Act provides that an intermediary will enjoy safe harbour only if it does not ‘select or modify the information contained in the transmission”. Having to censor content thus becomes of extreme concern for intermediaries since the IT Rules provide that any non-observance of Rules shall result in the loss of its exemptions from liability as provided under Section 79 of the IT Act and Rule 7 of the IT Rules may become applicable with respect to the extant law violated. The loss of safe harbour status specifically guaranteed such protection under law will significantly impact many businesses in India by vastly increasing their liability and forcing massive operational change.”
2. Institute a self-regulatory grievance redressal mechanism instead of a GAC
In its recommendations, the AIC suggests that the ministry allow industry stakeholders to set up a self-regulatory grievance redressal mechanism instead, saying that it will introduce ‘much-needed industry expertise’ into the grievance redressal process. “Given the changing needs of technology and users alike, an industry-led self-regulatory mechanism will enable businesses to adopt best practices and ensure long term solutions by identifying trends and gaps,” AIC said. It asked the ministry give a period of 6 months to implement such a mechanism.
In its submission AIC also raised the following points against the proposed GAC:
- The legitimacy of the GAC could be questionable as the AIC submitted that its creation goes beyond the scope of the parent legislation, i.e., Information Technology Act, 2020. “The rule making power is confined to prescribe due diligence measures for/ in respect of an intermediary. The rules do not contemplate the setting up of a quasi-judicial body,” the submission says.
- According to AIC, there is not enough clarity or restrictions around the functioning GAC to prevent it from acting as a judicial or quasi-judicial body with wide-ranging authority. Thus it says that ‘it seems that the body is intended to perform a function of the courts which undermines the authority of judicial review’.
- The GAC could lead to the executive performing roles of the judiciary (such as whether some content is defamatory the submission says). It will also lead to a dilution of the principle of ‘separation of powers’ between the executive and the judiciary, AIC said.
- AIC asked if the GAC’s orders would be made public as it would ensure accountability and transparency
3. Retain the grievance redressal timelines for intermediaries
AIC asked MeitY not to shorten the timeline for intermediaries to deal with certain types of user grievances, as proposed in the amendments.
Under the amendments, intermediaries need to dispose requests for removal of certain types of content within 72 hours. AIC raised the following concerns against the provision in its submission:
- Intermediaries have to judge content in violation of Shreya Singhal: Further as has been suggested earlier terms such as decency, morality, among others that can be vague and be open to arbitrary interpretation; and carry the potential risk of misuse.
- The 72-hour framework for grievance redressal sought to be introduced by the Proposed Amendments does not contain an underlying nexus with the gravity or urgency of the grievance, thereby introducing no justification for such a restrictive time-frame.
- 72 hour timeline could not be feasible to maintain for intermediaries, across all 10 categories of content. This could lead to an overload impacting users with genuine cases of high risk prohibited content as some relevant complaints could get missed or deprioritised.
Other changes AIC would like in the IT Rules
In their submission, AIC also asked for other changes with regards to the existing form of the Rules
- Releasing the long overdue Standard Operating Procedures
- Appointing nodal officers in law enforcement agencies
- Give more legitimacy to existing grievance redressal mechanisms
- Define broad terms such as ‘decency’, ‘morality’
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