[This post is authored by Sohina Pawah, a second-year student at the NALSAR University of Law, who is also an Editor for the TLF]
Back in June 2022, the Ministry of Electronics and Information Technology (“MeitY”) had first released the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”) for public consultation. Recently, the MeitY notified the Amendments to Parts I and II of the IT Rules 2021 by introducing the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“IT Amendment Rules, 2022”). The IT Amendment Rules 2022 aim at the regulation of social media intermediaries by increasing the burden of their compliance, and ensuring that the safe harbours provided to them are not abused. On the whole, the Rules aim at strengthening the protective framework for the “netizens’ interests” by prioritising their fundamental rights under Articles 14,19, and 21 of the Indian Constitution.
Deep concerns have been raised regarding some provisions of the recently notified rules that have the potential to cause harm to the digital rights of social media users and intermediaries, alike. This article would precisely focus on the analysis of those provisions.
Intermediary Liability in India
The term “intermediary” has been defined under Section 2(w) of the Information Technology Act 2000 (“the Act”) that includes but is not limited to social media giants, OTT platforms, e-commerce platforms, and Internet Service Providers (ISPs).
The liability for intermediaries in India stems from the idea of vicarious liability where the intermediary must be held liable for the illegal acts of the users on their platform. However, due to the limitlessness of user generated content on such intermediary platforms, not each and every thing posted on such platforms could be tracked by such intermediaries. Therefore, Section 79 of the Act provides immunity to the intermediaries from being held liable for the acts of the third party on their platforms, as long as they observe ‘due diligence’ as prescribed by the Central Government. Such a ‘safe harbour’ principle safeguarded the intermediary from the arbitrary imposition of liability for the publication of third-party content (that was violative of the provisions) on its platform, as long as it was carried out without the intermediary’s knowledge (as was observed in Avnish Bajaj v. State, and the subsequent amendment through The IT Act, 2008). Further, it also ensured that the data generated and posted by third parties such as social media users and other netizens were not subjected to arbitrary censorship by private corporations that limits their freedom to speech and expression.
The Catena of Problems associated with the The IT Rules 2021
The IT Rules 2021 had been introduced with the purpose of imposing limits on the intermediaries in their availing of the immunity available under the safe harbour provisions. It required internet intermediaries, especially the “significant social media intermediaries” (SSMIs) to abide by additional duties and responsibilities, the failure of which may make them liable for the acts of third-party users on their platforms (Part II of the IT Rules 2021). They also introduced provisions for the regulation of content by online publishers of news and current affairs, and curated audio-visual content by OTT platforms (Part III of the IT Rules 2021).
The IT Rules 2021 put several restrictions on the way user-generated content could be regulated, thereby compelling lawyers and activists to cite concerns regarding the digital and constitutional rights of India’s internet users, and the excessive delegation accorded to the bureaucracy in regulating content and penalising intermediaries for the publication of such content. The Rules also required messaging services to trace the first originator of the information published on its platform, if such information was found to be in violation of the provisions under Rule 3(1)(b) of the IT Rules 2021. Such identification of the first originator could be ordered through the Court or the relevant competent authority under the IT Act, on the grounds of prevention, detection, and investigation of certain offences relating to national security, public order, and sexual violence. This went against the end-to-end encryption policies of certain intermediary platforms, and allowed the violation of an individual’s privacy by demanding message content that could be highly personal in nature. Despite the grounds being mentioned, such a provision was likely to be misused because of the open-ended nature of terms like online casino with fastest payout public order, and thereby, various restrictions could be imposed on the freedom of the individual’s speech and expression. The three-tier Grievance Redressal Mechanism, as envisaged under the Rules, lacked the existence of procedural safeguards. A non-judicial adjudicatory mechanism for self-regulation by digital news media and OTT platforms posed an equally grave challenge to the constitutional validity of such provisions. These and other concerns were voiced through petitions and taken up by various Courts due to the violative and unconstitutional nature of such provisions.
Thus, the IT Rules 2021 warranted reform. The next part will throw light on how the latest notification on the IT Amendment Rules 2022 raises serious doubts with regard to the protection extended to the intermediaries through the safe harbour provisions, the freedom of speech and expression of individuals on the internet, and the other digital rights of the citizens.
The Potential Detriments of the IT Amendment Rules 2022
A prima facie analysis of the provisions under the IT Amendment Rules 2022 appears to be fulfilling the stated objectives of the amendment to the IT Rules 2021: first, the better protection of the interests and rights of the netizens; and second, a strengthened grievance redressal framework. Even though not all provisions pose an adverse harm to the internet freedom and the rights of its users, the amendments to Rules 3(1)(a) and (b) are but a semblance of sorts that helps paper over the increased authority that will now lie in the hands of the government.
Role of the Intermediaries: No longer Passive
The Government as the New Arbiter
While the IT Rules 2021 authorised the tech giants and other intermediaries to regulate and publish permissible content, the IT Amendment Rules 2022 provide for the establishment of Government-appointed committees (Grievance Appellate Committees or “GACs”) to look into user appeals filed against the content moderation decisions of intermediaries. Thus, the government, with an aim to protect the internet users against the violation of their interests and rights at the hands of the tech giants alone, has afforded to itself- the duty to adjudicate content-related appeals. This may cause the intermediaries, especially the social media intermediaries- to act as lapdogs to the government- permitting only “government-friendly” content on its platforms. This provision trumps the freedom of internet intermediaries, and the freedoms of the netizens who make use of these platforms. Moreover, the absence of any provisions specifying the operational methods for the GACs, further aggravates the concerns relating to the government’s lack of transparency and accountability.
Ambiguity of Terms
Rule 3(1)(b) vaguely defines misinformation, wherein no criteria for determining the knowledge or intent in communicating such misleading information is specified under the Rule. Additionally, earlier, the IT Rules 2021 required intermediaries to prohibit content that was patently false or misleading, but that “which reasonably may have been perceived as a fact.” Sub-clause (v) of Rule 3(1)(b) of the IT Amendment Rules 2022 does away with the latter part of this provision to completely prohibit patently false or misleading content.
Information of sensational nature is usually circulated and disseminated in different contexts, which often leads to its misinterpretation by the audience. Furthermore, satires and parodical content may often be perceived as misleading. Due to the very ambiguous and undefined nature of the term ‘misinformation’ under the provisions of the Rules, the intermediaries could assume a carte blanche in deciding what goes up on their platforms, and what does not. This provision could lead to a blatant disregard for the netizens’ rights to freedom of speech and expression on intermediary platforms.
Furthermore, the IT Minister Ashwini Vaishnaw said that the Amendment Rules require intermediaries to protect the constitutional rights of the citizens. While this is a welcome provision, the Rules are silent on how the constitutional rights of the citizens could be judicially enforced against private platforms, given that enforcement of fundamental rights is a duty of the state.
The most recent notification of the amendment to the IT Rules 2021 lays down some welcome changes vis-à-vis the 2021 Rules; however, major concerns have been raised in relation to the provisions that seek to: modify the role of the intermediaries in the publication of content on their platforms; increase the risks to their safe harbour immunity; and establish GACs that will accord greater power to the government to adjudicate user appeals. Further, the lack of comprehensive and clear definitions only raises doubts as to how certain terms, as provided in the Rules, are to be interpreted. While the protection of constitutional rights of the citizens is envisioned under the Amendment Rules, questions regarding their enforcement against private entities are raised, and remain unanswered. In the framing of guidelines and rules for internet intermediaries to follow, the government must not allow the insertion of provisions that could be subjectively interpreted to the advantage of either the government or the private intermediaries. Therefore, the newly amended IT Rules have to ensure that in the regulation of content on intermediary platforms, the rights of the users and the independence of the internet-based platforms are not compromised.