Executive interference in content moderation, free speech restrictions, and compromised safe harbour provisions are some of the Internet Freedom Foundation’s (IFF) concerns with the freshly notified amendments to the IT Rules, 2021.
Why IFF’s public brief matters: “The IT Rules, 2021 have been contested and criticised by various communities since its inception, primarily for introducing unreasonable restrictions on online free speech and user rights. However, the IT Amendment Rules, 2022 further deepen injuries to the digital rights of every Indian social media user,” warns IFF in a new public brief on the amended rules. The brief details the advocacy group’s concerns and recommendations on how the rules can be improved to protect digital rights.
“Our primary and broad recommendation remains withdrawal of the IT Rules, 2021 in their entirety,” said IFF, while urging the Indian government to publish a white paper on its intent for online content and intermediary liability regulations.
IFF particularly focuses on the Grievance Appellate Committee (GAC), a government-appointed forum set to hear appeals to content moderation decisions taken by intermediaries in India. The Committee lacks legislative basis and safeguards to ensure its independence, which may result in the Executive becoming the arbiter of permissible speech online, warns IFF.
Intermediaries will lose safe harbour protections if they do not comply with GAC decisions, noted Minister of State for Electronics and Information Technology Rajeev Chandrasekhar at a recent press conference. The Committee will be reportedly in place by November 30th, although the Ministry has promised not to finalise its “architecture, design and terms of reference” without public consultation.
First proposed in June this year, the amendments to the 2021 Rules supposedly seek to “ensure that the Constitutional rights of Indian citizens are not contravened by any Big-tech Platform [sic]”. The run-up to their notification instead saw stakeholders repeatedly flag the Rules’ potentially negative impacts on free speech, independent grievance redressal, and the ease of doing business in India.
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Do not constitute the Grievance Appellate Committee in the absence of safeguards
Rule 2(1)(ka) inserts the definition for the GAC, stating it “means a grievance appellate committee constituted under rule 3A”.
IFF’s Recommendation: Do not constitute the body, especially given that rules ensuring the GAC’s independence have not been enacted.
Reasoning: The GAC leaves judicial concerns over the independence of oversight mechanisms in the IT Rules, 2021 unanswered. For example, last year, the Bombay and Madras High Courts had already stayed a portion of the Rules proposing a regulator for digital news publishers and OTT platforms over concerns that it may thwart media independence. In the absence of safeguards, the GAC threatens “the free expression of millions of Indians and [will] in effect have similar implications as the IT Rules, 2021, which have been stayed by constitutional courts,” argue IFF.
Clarify the GAC’s procedure, constitution
Newly inserted Rule 3A provides insight into the GAC’s functioning and composition.
IFF’s Recommendation: While reiterating that the GAC lacks legislative basis, if constituted, IFF argues that the complainant must be provided with a right of hearing before the Committee. The members’ functions and minimum qualifications also need to be specified.
Reasoning: The GAC lacks legislative backing “since the amendments will be issued by the Ministry to its own Rules, and not by the Parliament to a statutory legislation [the Information and Technology Act, 2000],” explains IFF. The amendment currently does not clarify its procedure or the minimum qualifications of its members. It does not provide the complainant with a right of hearing either.
Government-appointed ex-officio GAC member must not be a bureaucrat
One of the GAC’s three members will be a Centre-appointed ex-officio member, as specified in Rule 3A(2)
IFF’s Recommendation: This member must not be a bureaucrat.
Reasoning: “By allowing an ex-officio member to be on the GAC, MeitY has essentially put a bureaucrat on the Committee,” argues IFF. The bureaucracy subsequently becomes an arbiter of permissible speech online, as opposed to an independent regulatory or judicial authority.
GAC may not be equipped to deal with the volume of appeals
Rule 3A(4) states that GAC will “endeavour” to resolve appeals within 30 calendar days of receiving them.
IFF’s Recommendation: No specific recommendation is provided. However, IFF flags that the GAC may be unable to adequately address the volume of appeals before it. “The creation of the GAC is not feasible,” concludes IFF.
Reasoning: Given the volume of user complaints Indian social media intermediaries receive, the GAC may have to deal with thousands of appeals per month, predicts IFF. Determining these adequately requires a “full-fledged adjudicatory apparatus” and staff with judicial training.
Ensuring compliance with platform rules and policies overturns Shreya Singhal and other judicial verdicts
Intermediaries are to “ensure [user] compliance” with their rules and regulations, privacy policies, and user agreements, and prominently publish these policies too under amended clause 3(1)(a).
IFF’s Recommendation: The amendment must be withdrawn as it is impermissible under India’s constitutional scheme. It “seek[s] to overturn years of jurisprudence surrounding intermediary protections as well as the Supreme Court judgement in Shreya Singhal vs Union of India [2015],” argues IFF.
Reasoning: The amendment’s phrasing is ambiguous and does not clarify how compliance is to be ensured. This makes it difficult for platforms to comply with the Rules, a concern amplified by the volume of content they deal with and would somehow have to monitor to ensure user compliance. “Social media platforms may risk losing their intermediary protection under the IT Act if a Court determines that they failed to comply with the IT Rules, 2021,” warns IFF. “Intermediary protections are necessary as they restrict content removal by social media platforms as a response to government orders or court directions for removal of content.” This “internationally recognised” safe harbour model was later laid out in Shreya Singhal too.
Withdraw clause likely to pre-empt arbitrary censorship by intermediaries
Intermediaries are to make “reasonable efforts to cause” users not to post certain kinds of content under amended clause 3(1)(b).
IFF’s Recommendation: Withdraw the clause. “While this is an improvement from the phrase “shall cause” as included in the Proposed Amendment, 2022, it is an unwelcome change compared to the IT Rules, 2021,” surmises IFF.
Reasoning: The amendment opens the doors for intermediaries to proactively scan and monitor user-generated content, while also potentially impacting politically “inconvenient” speech online. Platforms may become arbiters of what constitutes permissible speech on the Internet. This also violates the Shreya Singhal precedent, where the Supreme Court “held that intermediaries cannot decide permissibility of any content without an order of a court or an order by the Government”.
Either clarify or withdraw ambiguous “misinformation” provision
Types of unlawful speech that intermediaries must proactively monitor are included in sub-clause 3(1)(b)(i) to (x). Content that “knowingly and intentionally communicates any misinformation or information,” is a newly inserted phrase here.
IFF’s Recommendations: Misinformation is not defined, nor is the procedure to determine the intent to communicate misinformation. Either define these terms or withdraw them.
Reasoning: It is difficult to ensure consistent interpretation and application of undefined terms across complaints. Social media platforms may subsequently become “proactive arbiters” of permissible speech online, which may also lead to arbitrary censorship. This “is already resulting in issues given existing lack of natural justice, transparency and accountability as noted by MeitY,” argues IFF.
“Accessibility” provision is vague and undefined
Newly inserted Rule 3(1)(m) directs intermediaries to “ensure accessibility” for users, alongside privacy, transparency, and due process.
IFF’s Recommendation: A specific recommendation is not mentioned. However, while appreciating the provision, IFF flags that the term is both vague and undefined.
Reasoning: Accessibility has many meanings—it could mean “access to services” or “visual accessibility”. “It [the provision] may be used as a basis to question decisions of social media intermediaries to suspend or terminate accounts in response to [a] violation of the former’s rules,” warns IFF.
Constitutional duties cannot be extended to private actors
Newly inserted Rule 3(1)(n) directs intermediaries to respect the constitutional rights of Indians, particularly Articles 14, 19, and 21.
IFF’s Recommendation: Rephrase the provision, especially given that the “constitutional duties of state instrumentalities cannot be extended to private entities”. While appreciating the provision’s intent, IFF argues that the amendment may not be judicially or practically enforceable.
Reasoning: The amendment’s phrasing leads to ambiguity over its enforceability. It also lacks legal basis in the statute, while no justification has been provided as to why it was inserted. “The vagueness of the amendments doesn’t clarify whether fundamental rights can now be judicially enforced against private platforms,” adds IFF.
Short redressal timelines may impose arbitrary free speech restrictions
Amendments to Rule 3(2)(a)(i) direct content removal requests to be resolved by intermediaries within 72 hours.
IFF’s Recommendation: No specific recommendation is provided. However, IFF flags that a short timeline may lead to intermediaries arbitrarily censoring and suppressing speech online to avoid the consequences of non-compliance. This may lead to complaints being disposed of “without application of mind”.
Reasoning: Millions of pieces of user-generated content are transacted daily, raising concerns over an intermediaries competence to resolve complaints. “An empirical study conducted by The Centre for Internet and Society points out that intermediaries tend to over-comply with such takedown requests to limit their liability and this has a chilling effect on free speech and expression of all users,” says IFF.
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Read More
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- Internet Freedom Foundation Asks MeitY To Rework 2021 Rules
