On 25th February 2021, the Ministry of Information and Technology (“MeitY”) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code), 2021 (“IT Rules”) under the Information Technology Act, 2000 (“the IT Act”). Later, on 6th June 2022, MeitY released the draft amendments to the IT Rules to address the “infirmities and gaps” in the IT Rules for public and stakeholder consultation. Recently, on 28th October 2022, MeitY notified the Information Technology (Intermediary Guidelines and Digital Media and Ethics Code) Amendment Rules, 2022 (“Amended Rules”). The Amended Rules include several proposed amendments which were circulated earlier in June 2022.

The Amended Rules amend/introduce the following provisions:

• • Amendments to Rule 3(1)(a) pertaining to Multi-language access of privacy policy, user agreement etc.: The Amended Rules modify Rule 3(1)(a) to the extent that it requires intermediaries to publish on their website the rules and regulations, privacy policy, and user agreement in English or any other language as mentioned under the Eighth Schedule of the Indian Constitution for access or usage of the computer resource in the language of the user’s choice. While Rule 3(1)(a) provides an option for publishing of the rules/regulations, privacy policy and user agreements in English or any language included in the Eighth Schedule of the Constitution of India, the terminating sentence of this sub-rule provides room for further confusion by seemingly mandating that intermediaries would have to provide the policies and agreements in the language of the choice of the user, greatly increasing compliance and costs for intermediary services. Further, Rule 3(1)(a) mandates that intermediaries ensure compliance with the privacy policy and user agreement.

• • Amendments to Rule 3(1)(b) and to grounds mentioned thereunder:
    • • Reasonable efforts requirement: As proposed in the draft amendments which were circulated in June 2022, Rule 3(1)(b) of the Amended Rules mandate intermediaries to make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that did not comply with grounds mentioned under sub-clauses to Rule 3(1)(b). The IT Rules mandated intermediaries to only inform users to not publish, host, modify, etc., certain types of offending information as mentioned under Rule 3(1)(b). However, the Amended Rules require intermediaries to take reasonable efforts to cause the user not to publish certain types of offending content on their platform. It may be interpreted to potentially suggest that intermediaries are now required to install mechanisms that can prevent users from uploading content that may violate the law. For instance, intermediaries may be required to put in place a content monitoring system that can identify ‘illegal content’. However, it can be argued that this may not be the case, as according to Rule 4(4) of the IT Rules, Significant Social media Intermediaries (“SSMI”) are required to “endeavor to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information depicting rape or child sexual abuse, etc.”. Therefore, if Rule 3(1)(b) intended such proactive measures to be taken, it would possibly require an intermediary to deploy similar tools. Accordingly, there is a lack of judicial clarity with respect to the scope of “reasonable efforts” which must be implemented by intermediaries to ensure compliance under Rule 3(1)(b) as prescribed by the Amended Rules. Further, intermediaries should be prudent and neutral while implementing the (reasonable efforts basis) filtering mechanism under Rule 3(1)(b) to prevent violation of the user’s fundamental rights as envisaged under Articles 14, 19, and 21.Rule 3(1)(b) of the Amended Rules also goes beyond the statutory mandate provided by Section 79 of the IT Act. This is because Section 79 does not require any positive act on the part of intermediaries to police its users in the manner prescribed under Rule 3(1)(b). Therefore, Rule 3(1)(b) effectively contradicts the scope of Section 79 of the IT Act. Further, it is necessary to note that provisions of parent legislation enacted by the Parliament cannot be “overruled” by Rules/Notifications issued by the Executive/Government which, however, seems to be the effect of Amended Rule 3(1)(b). Additionally, Section 79(1) of the IT Act does not mandate this level of proactive policing and content moderation by intermediaries as such intermediaries are deemed to not have “actual knowledge” of potential violations of law.

        Also, this amendment contradicts the holding of the Supreme Court in Shreya Singhal v. Union of India (“Shreya Singhal”) which read down the ‘actual knowledge’ requirement under Section 79(3)(b) of the IT Act. As per the Shreya Singhal judgment, an intermediary is deemed to have actual knowledge if it receives an order directing it to take down content from a judicial authority or appropriate government agency and not in response to individual requests by citizens. It appears to be that this amendment requires intermediaries to pre-empt potentially violative information and take it down on their own volition when it is outside the statutory mandate of Section 79 of the IT Act.

    • Amendment made to Due-diligence requirements under Rule 3(1)(b): The Amended Rules delete ‘libelous’ and ‘defamatory’ from the list of offending information prohibited under Rule 3(1)(b). The list of offending information now includes ‘misinformation’ and the promotion of enmity between different groups on the grounds of religion or caste with the intent to incite violence.

• • Insertion of Rules 3(1)(m) and 3(1)(n): The Amended Rules mandate intermediaries to take all reasonable efforts to ensure the accessibility of their services to users and reasonable expectation of due, diligence, privacy, and transparency. Further, Rule 3(1)(n) states that an intermediary shall respect all the rights accorded to the citizens under Articles 14, 19, and 21 of the Indian Constitution.

• • Grievance Redressal by Intermediaries: As per the Amended Rules, Grievance Officers shall “resolve” complaints within 15 days of receipt of complaints as against disposing off complaints as mentioned under the IT Rules. Therefore, the nomenclature has been modified under the Amended Rules. Further, any complaint, that does not relate to the publication or hosting of information that leads to (i) infringement of IP, copyright, etc. or (ii) belongs to another person and to which the user does not have any right, or (iii) violates any law for the time being in force, will be acknowledged and resolved within seventy-two hours of such reporting. The amendment further requires the intermediary to develop safeguards to avoid any misuse by users. The IT Rules mandated Grievance Officers to dispose of any complaints within fifteen days from the date of receipt of such complaints. However, the Amended Rules create multiple timelines depending on the nature of the violation. The timeline provided for resolving issues related to the infringement of copyright under the Amended Rules is fifteen days which conflicts with the timeline mandated under the Copyright Act, 1957 (‘Copyright Act’) and the Copyright Rules, 2013 (‘Copyright Rules’). The Copyright Rules permit the issuance of takedown notices and place an obligation on the person storing infringing material to take measures, within thirty-six hours. The exclusion of the seventy-two hours timeline for infringement complaints appears to mean that intermediaries can take as long as fifteen days to take an action upon receipt of a complaint.

• Constitution of Grievance Redressal Appellate Committee: The Amended Rules introduce a new rule, namely Rule 3A, for constituting a Grievance Appellate Committee (“GAC”). The GAC will act as the appellate authority against decisions of the Grievance Officer. Therefore, any person who is aggrieved by the decision of the Grievance Officer can prefer an appeal to the GAC for resolution. As per the Amended Rules a GAC shall consist of a chairperson and two whole-time members appointed by the Central Government, of which one shall be a member ex-officio and two shall be independent members. Further, the Amended Rules enable an aggrieved person to file an appeal within thirty days from the date of receipt of communication from the Grievance Officer and require the GAC to resolve the appeal within thirty days from the receipt of the same.The creation of GAC under the Amended Rules aligns with the proposed amendments that were circulated in June 2022. It will act as an appellate authority to deal with grievances arising out of orders passed by the concerned grievance officer. It is to be noted that the constitution of GAC does not bar the right of the aggrieved party to approach a court of law against the decision of a Grievance Officer, therefore, providing scope for conflicting orders to be passed by the Court and GAC. Further, the Amended Rules provide no clarity on the course of action an intermediary should pursue in case of contradicting orders by the GAC and courts. Further, the Amended Rules confer on the GAC “adjudicatory powers” of a tribunal in the absence of an enabling law that amounts to excessive delegation of power.

  It is worth noting that, any transfer of power to the GAC must conform to the standards as prescribed in Madras Bar Association v. Union of India (“Madras Bar Association”). In this case, the Supreme Court held that tribunals that are vested with judicial power should possess the same independence, security, and capacity as the courts that the tribunal seeks to substitute. It also opines that members sharing the functions of the tribunal should possess expertise in law and should be competent to discharge judicial functions. Although the Amended Rules mention that the GAC will comprise three members out of which one shall be ex-officio and the other two shall be independent, the Amended Rules do not indicate whether such members would possess expertise in law. Additionally, the Amended Rules do not prescribe any procedure for the appointment of the GAC members.

Our Take

Despite the extensive consultation process, and industry-wide discontent, the Amended Rules retain several provisions as proposed by the draft amendments. The provision mandating intermediaries to take reasonable efforts also raises several fundamental doubts with respect to the function and role of an intermediary in the internet ecosystem. The lack of guidance on reasonable efforts may potentially cause confusion amongst the industry stakeholders due to the absence of a well-defined threshold. Further, conflicting timelines to resolve complaints relating to the infringement of intellectual property rights and the procedural lacunae in constituting the GAC may make the effective implementation of the Amended Rules challenging.

This article was first published on Saikrishna&Associates