Amendments to the Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021

I. INTRODUCTION

With the rise of social media and over-the-top (“OTT”) platforms, statutory regulation to safeguard against misuse, misinformation, and privacy violations became the need of the hour. Over the years issues with regard to social media platforms were highlighted in the Parliament and finally through the judgement in Prajwala vs. Union of India, ¹ the Hon’ble Supreme Court directed the Central Government to frame intermediary guidelines in order to eliminate child pornography and morphed explicit images from online platforms. Hence, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”)² were enacted under the Information Technology Act, 2000 (“Act”). The Intermediary Rules provide for grievance redressal and self-regulating mechanisms, as well as factors to be considered before publishing, transmitting, or exhibiting digital content. A brief review of the Intermediary Rules can be accessed here. On 28th October 2022, the Ministry of Electronics and Information Technology has amended the Intermediary Rules (“Amendment”) to provide improved grievance redressal mechanisms and enhanced due diligence requirements.

II. AMENDMENT TO THE INTERMEDIARY RULES

Languages for Privacy Policy, User Agreements etc.

Rules 3(1)(a) and (f) mandate that the language in which intermediaries must publish the rules and regulations, privacy policy, user agreement and any updates thereof, on their website and/or mobile based applications, shall be English or any other language specified in the Eighth Schedule to the Constitution of India (“Constitution”) depending on the user’s preference.

Positive Obligation on Intermediaries in respect of user disclosure of ‘identified criteria’

Previously Rule 3(1)(b) required intermediaries to inform users not to host, display, upload, modify, publish, transmit, store, update, or share any information in relation to certain identified criteria provided therein, through its rules and regulations, user agreement and privacy policy. However, this compliance has now been amended and made more stringent, requiring an intermediary to not merely inform but, to make reasonable efforts through its rules and regulations, user agreement and privacy policy to cause users of its computer resource not to host, display, upload, modify, publish, transmit, store, update, or share any information in relation to such identified criteria.

Modifications to ‘identified criteria’

As part of the identified criteria in Rule 3(1)(b), sub clause (ii) previously included information that was defamatory, libellous or inconsistent with the law in force, however these standards have been deleted. Rule 3(1)(b)(v) has been amended to the effect that the obligation for barring users from using intermediaries to publish or share information which deceives or misleads the addressee as to the origin of the message or which promotes misinformation or patently false or untrue or misleading information, shall persist regardless of the same being perceived as a fact.

Another identified criteria under Rule 3(1)(b) which has now been deleted is the previous sub-clause (x) which included information which is patently false and untrue and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.

Accessibility and Protection of Constitutional Rights

Sub-clauses (m) and (n) have been added to Rule 3(1). Rule 3(1)(m) provides that an intermediary must take reasonable measures to ensure accessibility of services to users, along with reasonable expectations of due diligence, privacy, and transparency. Rule 3(1)(n) provides that an intermediary must respect all rights accorded to citizens under the Constitution, in particular Articles 14, 19, and 21.

Timeframe for Resolution of Grievances

Rule 3(2)(a)(i) which provides for grievance redressal mechanisms by an intermediary, previously required the Grievance Redressal Officer to acknowledge complaints within 24 (twenty-four) hours and dispose of the same within 15 (fifteen) days, however the word ‘disposed’ has now been modified to ‘resolved’ and two provisos have been added under this requirement. The first proviso states that a complaint in the nature of request for removal of information or communication link in relation to Rule 3(1)(b), other than that which belongs to another person or over which the user does not have any right, or which infringes on any trademark, patent or copyright, or which violates any law for the time being in force, must be acted on as expeditiously as possible and resolved within 72 (seventy-two) hours of reporting. The second proviso states that appropriate safeguards may be developed by intermediaries to avoid misuse by users.

Establishment of Grievance Appellate Committee

The newly inserted Rule 3A provides for appeal to a grievance appellate committee consisting of 3 individuals, which is to be established by the Central Government within 3 (three) months from the commencement of the Amendment. Any person aggrieved by a decision of the grievance officer may prefer an appeal to the grievance appellate committee within 30 (thirty) days from the date of receipt of communication from the grievance officer. The grievance appellate committee must deal with such appeals expeditiously and endeavour to resolve them within 30 (thirty) days from date of receipt of the appeal. This grievance appellate committee is also permitted to seek assistance from experts. This rule further provides for the adoption of an online dispute resolution mechanism and the uploading of orders on the website of the grievance appellate committee.

III. CONCLUSION

The Amendment further tightens the process of dissemination of information and aims to improve the grievance redressal mechanism. However, there remain concerns that provisions regarding upholding the Articles of the Constitution could be widely interpreted by different courts and may lead to different views which may create disparity in compliances by different intermediaries. The requirement for intermediaries to make reasonable efforts to ensure compliance by users could lead to heavy compliance costs for them. Furthermore, the addition of the proviso for removing information or communication links within 72 (twenty-four) hours is vital to curb the viral spread of content on the internet. Lastly, it may prove to be tedious and onerous for intermediaries to formulate rules, regulations, privacy policy, and user agreement in a multitude of languages in order to comply with the conditions within the Intermediary Rules.

The objective of enacting the amended Intermediary Rules is to ensure an open, safe, trusted and accountable internet for all internet users in India and to provide for a new sense of accountability amongst intermediaries especially within big tech platforms. The question is whether it will be successful in tackling the issues faced by the digital users in times when technology is evolving at a rapid speed.