The Ministry of Electronics and Information Technology (“MeitY”), on 6th June, 2022, published proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”), which were notified on 25th February, 2021, for public consultation and stakeholder comments.
As per MeitY’s Press Note, the amendments have been proposed to provide additional avenues for grievance redressal, apart from courts, and new accountability standards for Intermediaries to ensure that Constitutional rights of Indian citizens are not contravened by any “Big-tech platform”.
Applicability: The proposed amendments are directly applicable to all Intermediaries, specifically Big-Tech Platforms and Significant Social Media Intermediaries (“SSMI”).
The proposed amendments go beyond the scope of Section 79 of the Information Technology Act, 2000 (“IT Act”), and introduce high standards of compliance for all Intermediaries, not just SSMIs. The draft amendments effectively require all Intermediaries to put in place an active content monitoring/filtration process to ensure that their users do not host, display, upload, modify, publish, transmit, store, update or share any offending information as prohibited under Rule 3(1)(b). This requirement goes against the principle enshrined in the IT Act that as long as Intermediaries ensure necessary due diligence requirements they will be protected under the safe harbour as they are deemed to not have ‘actual knowledge’ of legal violations within their resources. Further, in order to avoid any liability under the amended IT Rules, 2021, Intermediaries may end up over-censoring and over-moderating the content on their platform. Furthermore, an action taken by an Intermediary as part of its filtration process, such as blocking of a user account, may be construed to be a violation of the constitutional right of freedom of speech and expression, thus violating the mandate under the proposed Rule 3(1)(n) of upholding the constitutional rights of all citizens. Reduction of timelines for redressal of complaints places unnecessary regulatory burden on Intermediaries.
In our opinion, the Government’s attempt to provide the Grievance Redressal Committee with “adjudicatory powers” of a court/tribunal without any enabling law is an exercise of excessive delegation, contrary to and in violation of the provisions of the IT Act and the principle of separation of powers enshrined in the Constitution of India.
Interestingly, the IT Rules, 2021 have been challenged before multiple High Courts and clubbed together for consideration by the Supreme Court. Accordingly, amendment of IT Rules, 2021 should, at the very least, be avoided during pendency of the petitions.
This article was first published on Saikrishna & Associates