Bug fixes in information technology rules, 2021?

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The Ministry of Electronics and Information Technology (MeitY) has rolled out a new set of IT Rules, 2021 on May 26e, 2021, focusing primarily on creating important provisions for establishing a comprehensive grievance mechanism for users of social media and for regulating content generated therein. The rationale was to impose accountability on social media and Internet Service Providers, which have more than five million users, called Significant Social Media Intermediaries (“SSMIs”). For more information on these rules, you can access our full article on the same here.

One year after the implementation of the said rules, the MeitY on June 06, 2022 had rolled out a package of amendments and sought public comment, open for 30 days, i.e. until July 06, 2022. The amendments come in light of the practical implementation of information technology (intermediate guidelines and Code of Ethics for Digital Media) Rules, 2021 and to fill the gaps and maximize its effectiveness and efficiency in the Indian digital ecosystem.

Existing features

The rules essentially define “intermediaries” as entities that store or transmit data on behalf of others and include telecommunications and internet service providers, online marketplaces, search engines and social media sites. In addition, it establishes certain due diligence requirements that each of these intermediaries are required to follow, subject to which they will be exempt from any form of liability for User Generated Content. These due diligence requirements prima facie include:

  1. Sufficiently inform its user of all rules, regulations, privacy policies, terms and conditions, etc. which may have been set up by these intermediaries so that their user can benefit from the services they offer.
  2. Formulation of a mechanism for the removal of content according to the government or the court, in an expedited manner.
  • Establishment of a grievance mechanism to resolve user complaints
  1. Make it easier to find the identification of the first author of any information published online, but only in specific circumstances.

Key Proposed Changes to Information Technology Rules

Establishment of the grievance appeal committee

The driving force behind the proposed amendments to the existing rules is to ensure the smooth resolution of complaints, until users are satisfied. In this context, the draft proposes the creation of government-appointed individual appeal committees to adjudicate on issues related to the moderation of content on social media and other internet platforms.

With a view to making user appeals more functional, the proposal to create a dedicated Grievance Appeals Committee (GAC) has been put forward. While currently, the only alternative a disgruntled user has to appeal any content moderation decision (made by the company’s grievance officer), is to go to court. However, with the introduction of the GAC, the MeitY aims to transfer the responsibility of bringing a problem to its logical conclusion, from the company, to the laws of the land in a twofold way, and simultaneously reduce the burden on the courts. .

Additional Responsibilities of Grievance Officers

The proposal also aims at a faster resolution of problems, which involves, among others, problems related to intellectual property, national integrity, etc. However, in the above circumstances, such grievances should be dealt with expeditiously, ie within 72 hours of the filing of the complaint.

Recognition of user’s constitutional rights

Justice KS Puttaswamy (retired) and Anr. v. Union of India and Ors.[1] leads the citizens (and in this case, the Internet users) of India to enjoy the fundamental right to privacy. Thus, with the proposed amendments, the MeitY expressed in particular that the implementation of the amendments under discussion would enable them to effectively implement the requirements of the Information Technology Rules, 2021 in letter and spirit, further expressing that the main objective behind the introduction of the said amendments is to ensure that the the constitutional rights of Indian citizens are not infringed by any major tech platform securing new standards of accountability.

Opinions of the general public

With the deadline for submitting comments and contributions on the draft under discussion, expiring on July 06, 2022The internet, meanwhile, has seen a rather mixed reaction to the receipt of the proposals.

Apparently, it seems that the proposal to introduce the GAC was welcomed by many, as it was seen as a regulatory authority that would act independently of internal complaints officers; the advantage being that it would adjudicate on such complaints, subjecting them to the applicable Indian laws and the fundamental rights of Indian citizens/internet users as well as the policies put in place by the intermediaries concerned, thus protecting the rights of Indian internet users.

However, the execution of orders issued by the GAC was a source of concern for some, largely due to the lack of clarity on this aspect, because ultimately, despite obtaining an order from the GAC, it is the intermediary that the user should approach. Moreover, this line of thinking has also brought to light questions regarding the willingness of intermediaries to comply with the requirements set out in the Rules.

Intermediary non-compliance could lead to a situation in India similar to that created in the European Union, where the introduction of the EU’s General Data Privacy Regulation (GDPR) has sent chills down the spine of giants such as Facebook and Instagram due to the extensive compliances set out by the GDPR for these intermediaries to comply.[2] While the EU has the resources and the confidence to accept and express indifference to the kind of warning Meta is soliciting (among other things alluding to the suspension of their social media services in the EU in light of their reluctance to comply with the GDPR), it is in fact, a cause for concern if a situation like this were to arise in India. Indeed, a large portion of India’s audience relies heavily on these same platforms, and they could very likely be hit hard if intermediaries, such as Meta, were to pull their social media services from India.

In addition, another viewpoint also included concerns about the government’s power to get content removed on the pretext of undermining national integrity. Even more, because this power, read with article 69 of the computer law[3]would raise questions about the government’s responsibility in many respects.

Now that the comments from the public are being considered and duly taken into account, time will tell how the said rules would play out in the Indian scenario and how its implementation affects the online content moderation management process, while taking into consideration user rights.

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