On 28th October 2022, India's Ministry of Electronics and Information Technology ("MeitY") amended the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 ("IT Rules, 2021"), issued under the Information Technology Act, 2000 ("IT Act"). These amendments impose new obligations on intermediaries while expanding their scope of existing obligations and also provide for a grievance appellate mechanism.
The 5 top changes that are brought into “immediate” effect by of these amendments to the IT Rules 2021 are enumerated below:
2. Intermediaries to implement proactive monitoring measures to ensure compliance with their platform policies and keep unlawful content off their platforms
The Amendment Rules significantly expand the intermediary’s obligation to “ensure” user compliance with the platform policies from the previous requirement of merely publishing these Platform Policies. Additionally, the amendment mandates the intermediaries to make “reasonable efforts” to “cause” users not to upload, share, store specified unlawful content online. Therefore, every intermediary would now be required to implement proactive monitoring measures to prevent users from hosting/disseminating/uploading any unlawful content and identify such unlawful content and remove if it has already been posted.
3. Expedited 72-hour resolution timeline for complaints requesting to remove content
A new proviso to Rule 3(2)(i) has been inserted that mandates the Intermediaries to resolve any complaint for removal of any content within 72 hours of the receipt of the user’s or victim’s complaint. This will help to ensure that problematic content is removed expeditiously and does not become viral over a sustained period of time. Any other grievance will continue to be addressed within 15 days timelines as specified under the IT Rules, 2021. Further, the amendment also permits intermediaries to develop 'appropriate safeguards' to prevent any misuse of the grievance redressal mechanism by the users. For example, where a user submits any inappropriate, trivial or inauthentic complaint, the intermediary may exercise due diligence to prevent such misuse.
4. Intermediaries to respect the rights guaranteed to users under the Constitution of India
The newly inserted Rule 3(1)(n) states that intermediaries must respect the constitutional rights guaranteed to citizens, including but not limited to the fundamental rights guaranteed under Articles 14 (equality before the law), 19 (right to freedom) and 21 (protection of life and personal liberty) of the Constitution. This has been made necessary because a number of Intermediaries have acted in violation of constitutional rights of Indian citizens and the Government had to act as it is the guarantor of such rights of all our citizens. By virtue of this Rule, even private parties would be required to ensure constitutional rights for example, intermediaries would no longer be able to pre-emptively take down content or block the users to comply with the law without meeting the requirements of natural justice e.g., issuing a show cause notice to the user.
5. Setting up of Grievance Appellate Committees as a new appellate body for Users
The amendment provides for an additional avenue for grievance redressal apart from Courts by way of establishing a Grievance Appellate Committee (GAC) as a new appellate body that Users will have the option to appeal against the grievance redressal process of the intermediaries. Any person aggrieved by a decision made by an intermediary's Grievance Officer has an option to appeal such a decision before the GAC within 30 days of receipt of communication from the Grievance Officer. The GAC will resolve the user’s appeal within 30 days of its receipt. The entire appeal process (i.e., from filing to decision) will be conducted through an online dispute resolution mechanism. All entities classified as intermediaries operating in India ranging from ISPs to social media platforms to fintech platforms are expected to comply with the GAC's order and upload a compliance report on its website.
It is apparent that the focus of these amendments is on the protection of online users which consequently have led to significant increase in the compliances burden on intermediaries. The reduced timeline of 72 hours for resolving requests for content removal and obligation on intermediaries to “make reasonable efforts to cause the” users not to post certain kinds of content will require intermediaries to create more robust internal legal systems for grievance redressal and algorithms for monitoring and scanning of all user generated content. This may potentially lead to arbitrary censorship by intermediaries and suppression of free speech which if not handled carefully may contravene the new amendment requiring platforms to respect the constitutional rights of Indians. It is expected that the MeitY will provide more clarity on the amendments to address the concerns of the stakeholders. We will keep you updated.