Corporate censorship, jurisdictional ambiguity, and inequitable grievance redressal are some of the potential outcomes of the proposed amendments to the IT Rules, 2021, raised by the Centre for Communication Governance (CCG) at the National Law University, Delhi. CCG deeply elaborates on the legislative and procedural shortcomings of the amendments in its submissions on the Rules to the Ministry of Electronics and Information Technology (MeitY) dated July 4th.
Why it matters: The proposed amendments—released the second time around on June 6th by MeitY—aim to reportedly curb the ills of Big Tech in India and ensure a ‘safe, open, accountable, and transparent’ Internet for Indian netizens. However, they have been widely criticised by stakeholders in India’s digital sector for potentially enforcing pre-censorship by intermediaries operating in India, bringing grievance redressal under the government’s purview, and harming the interests of smaller intermediaries (like start-ups) who may struggle with compliance. In a public consultation on the Rules held in June, MeitY appeared open to issuing clarificatory language or changing certain provisions based on the submissions it receives. The Ministry invited public comments on the proposed amendments until July 6th.
Enacted last May, the highly controversial IT Rules 2021 have been challenged in 19 separate court cases. While they supposedly seek to ‘regulate’ intermediaries and digital media in India, concerns over censorship, chilling effects on free speech, and government interference in India’s digital sector have been repeatedly raised. Some High Courts have struck down provisions related to digital media regulation, while platforms like Twitter took the slow route before eventually complying with the Rules’ last year.
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Proposed Amendments to Rules 3(1)(a) and 3(1)(b) May Dilute Safe Harbour Under IT Act, 2000
Depending on how they are interpreted, the proposed amendments to Rules 3(1)(a) and 3(1)(b) may dilute safe harbour by ‘requiring intermediaries to actively prevent users from uploading unlawful content’.
Potential outcomes given the status quo:
- Dilution of safe harbour: If read literally the proposed amendments ‘may impose an obligation on intermediaries to ensure their users do not upload unlawful content’. This would violate the safe harbour principle, outlined in Section 79(1) of the Information and Technology Act, 2000 (IT Act), which protects intermediaries from being held liable for unlawful content hosted on their platforms, subject to certain conditions. That is, ‘an intermediary will lose safe harbour and could be liable because it has failed to prevent a user from uploading unlawful content, however, (..) the reason for safe harbour is to ensure that intermediaries are not penalised for their users’ unlawful content.’
- Free speech violations: As a result, intermediaries may end up proactively removing content that is potentially unlawful to avoid being held liable for it. Further, the categories of unlawful content listed in Rule 3(1)(b)(i)-(x) themselves are broad and ‘neither defined nor expressly restricted by an Indian statute’. Intermediaries may take down large swathes of content under these vast categories, using ‘untested or inaccurate technologies’ like content filters. Doing so may pose wide and ‘impermissible’ restrictions on free speech online, violate the privacy of users uploading content, and lead to the ‘corporate surveillance’ of the Indian Internet. It may also place ‘unreasonable’ burdens on all the intermediaries expected to undertake such content monitoring.
- Legislatively impermissible: The proposed amendments also constitute ‘delegated legislation’, which as per past judicial reasoning, ‘must yield to primary legislation’, or the IT Act. In other words, the proposed amendments override safe harbour as outlined in the IT Act—which they legally cannot do. Additionally, intermediaries are not mandated to take down content unless specified in a court or government order, as per the precedent set in Shreya Singhal v Union of India (2015). Mandating that intermediaries take down content of their own volition may potentially violate the apex Court’s verdict.
Rules may be functionally redundant, argues CCG: That being said, assuming that the proposed amendments do not require intermediaries to proactively monitor content for unlawful speech, then CCG suggests that ‘the proposed amendments may be functionally redundant’. That is:
Section 79(3) (as interpreted in Shreya Singhal) read with Rules 3(1)(d) and 3(1)(g) of the 2021 IT Rules, would indicate that an intermediary is only legally required to remove content in three situations: (i) pursuant to an order by a competent court; (ii) pursuant to an order by an authorised government agency; or (iii) pursuant to a user complaint with respect to non-consensual intimate images under Rule 3(2). Upon this reading, the proposed amendments to Rule 3(1)(a) and Rule 3(1)(b) do not require intermediaries to “ensure” that users do not upload unlawful content. If intermediaries are not required to cause users not to upload content, their obligations will be limited to ensuring that their terms of service prohibit the ten categories of content set out in Rule 3(1)(b)(i)-(x). This is what is currently required of them under the 2021 IT Rules.
In this case, CCG recommends that the amendments be dropped as they do not improve the functioning of the IT Rules in force. On the other hand, the proposed amendments may be clarified to indicate that intermediaries need only remove content following a court or government order, or a specific user complaint under Rule 3(2).
Concerns With the Proposed Grievance Appellate Committee
The proposed GAC may exceed the rule-making powers set out in the parent legislation (the IT Act), argues CCG: The proposed amendments will be enacted under two sections of the IT Act: 87(2)(z) and 87(2)(zg). The former grants MeitY powers to detail ‘procedures and safeguards’ for blocking orders under Section 69A. The latter grants it the power to develop safe harbour guidelines under Section 79(2) that intermediaries must observe. So, the changes suggested by the proposed Rules have to fall within this ambit set by the parent legislation—which they don’t. Neither Section 87(2)(zg) nor the IT Act envisions the formation of an adjudicatory authority like the GAC—indicating that the body may fall beyond the parent statute’s ambit.
Potential outcomes given the status quo: ‘This may leave the proposed amendments concerning the GAC open to a challenge before a court and raises the possibility that the amendments may be struck down,’ CCG argues.
GAC also lacks independence and legally-mandated procedural safeguards: ‘The independence and impartiality of the GAC is essential for users to repose trust in the appeals process,’ says CCG. Both qualities are critical especially given that the Central government may be one of the parties appearing before the Committee. The GAC must have statutory safeguards that ensure the independent composition and operation of the GAC, argues CCG.
Potential outcomes given the status quo:
- Natural Justice waylaid: The proposed amendments do not define the GAC’s hearing procedure. A significant concern, in this case, is that the originator (whose content is under question) has not ‘been expressly granted an opportunity to be heard by the GAC’. Failing to give the originator a chance to appear before the GAC may deviate from the principles of natural justice—and from both prevailing IT legislations and judicial precedent as well.
- Approaching Courts may not be an alternative: The proposed amendments clearly state that the GAC functions as an alternative to judicial redressal—users are free to approach the Courts to challenge content takedowns by intermediaries. However, CCG argues that in such cases, users ‘would effectively be seeking a remedy that compels an intermediary to host content contrary to their terms of service. Such a remedy may interfere with the intermediary’s right to freely conduct its business.’ In such an event, the GAC becomes the only body potentially capable of reinstating content or removing account restrictions. Given that this may be the case, ensuring that it functions both independently and with procedural safeguards in place is crucial.
The GAC could lack the ability to dispose of large volumes of appeals, argues CCG. The GAC will be dealing with appeals from all of India’s intermediaries—if it can’t address all of them, then Indian netizens will have ‘inequitable access to redressal against intermediary decisions’. Staffing the GAC sufficiently to ensure that this doesn’t happen is critical.
Potential outcomes given the status quo:
- The GAC is flooded with complaints: In such a scenario, it may only be able to hear a tiny proportion of the complaints it receives. CCG cites the example of a Review Committee set up under the Indian Telegraph Rules in 1951 to assess interception orders—even back then, it still had to review between 15,000 to 18,000 orders every two months.
- Stretched thin staff: ‘Government officials typically have various pressing responsibilities and limited time available to engage with the vital tasks of the committee,’ argues CCG.
Concerns With the Proposed Timelines for Grievance Redressal
The 72-hour timeline for complaint redressal may give rise to ‘corporate censorship’: CCG recommends that the timeline be dropped and that ‘MeitY adopts a more nuanced approach that differentiates between various types of online content and provides for staggered take down timelines depending on the nature of the content.’ As the content types in Rule 3(1)(b)(i)-(x) are ‘expansive’, intermediaries should be allowed to respond to different types of content based on specific timelines to avoid hasty decision-making. Shorter redressal timelines should be applicable only to content that is immediately recognisable as illegal and causing harm. This can include content pertaining to child sex abuse or ‘gratuitous violence’. On the other hand, complaints pertaining to allegedly fraudulent or defamatory content may require longer timelines to assess.
Potential outcomes given the status quo:
- Intermediaries lack legal expertise: The restricted content types in Rule 3(1)(b)(i)-(x) are expansive and capable of being broadly interpreted. Further, some categories—such as content harmful to a child, that is patently false, or is ‘racially or ethnically objectionable—are not covered under Indian statutes, making discerning content violations difficult for intermediaries. The Rules allow complaints to be lodged against allegedly unlawful or defamatory content—determining whether the complaints are true or not requires ‘judicial determinations on speech as competing rights and interests need to be balanced,’ argues CCG. Intermediaries struggling with large volumes of complaints may lack the capacity to address such complaints comprehensively.
- Over compliance: In order to stay on the right side of the law—and address all complaints within 72 hours—intermediaries facing any complaints are ‘likely to over-comply with user requests and simply remove content’ mechanically. This could lead to intermediaries entertaining ‘frivolous’ user complaints against online content—which harms the free speech rights of Indian netizens. Smaller intermediaries are likely to face the brunt of complying with the tight redressal timelines specified under the proposed rules.
- Potentially harmful content stays online: On the flip side, if intermediaries were to respond to user complaints by systematically rejecting them (and thus keeping content online), this may leave potentially dangerous content online unchecked.
Concerns With Clauses on Ensuring Accessibility, Respecting Constitutional Rights
Legal obligations under Rule 3(1)(m) are unclear, which may increase compliance burdens and complicate enforcement. CCG recommends that the amendment is not adopted—and that a data protection law is brought in to reduce regulatory ambiguity when it comes to data processing and privacy.
Potential outcomes given the status quo: The Rule expects intermediaries to ensure users access their services with a ‘reasonable expectation of due diligence, privacy, and transparency.’ However, India is yet to enact a data protection law (and withdrew the only working draft of it last week). In the absence of a definite regulatory framework, the provision may ‘may cause increased compliance burdens and costs for intermediaries which are unable to ascertain when they may be in breach of these obligations,’ argues CCG. This may disproportionately affect small intermediaries with limited resources.
Broad obligations under Rule 3(1)(n) can lead to inconsistent interpretations. CCG recommended that the proposed amendment be dropped.
Potential outcomes given the status quo: To impose this responsibility on intermediaries may lead to heightened legal uncertainty.
- Rights are interpreted by the State or constitutional functionaries: ‘[Constitutional] rights were drafted and have been applied in the context of the State’s obligations to its citizens, and it may not be suitable to transpose these into the relationship between private corporations (i.e., intermediaries) and their users,’ argues CCG. The evolving interpretation of these rights is typically carried out by the State or ‘constitutional functionaries with a high degree of specialised knowledge’.
- Divergent interpretations of rights: Intermediaries may be unable to discern when they are in true compliance with the rule or not, CCG argues. Intermediaries may end up making divergent decisions relating to speech and privacy, leading to legal uncertainty. The indeterminate timeline of the provision may increase compliance costs and harm smaller intermediaries.
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