Additional compliances for intermediaries under recently amended Intermediary guidelines
Summary
India notified the amendments to the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT
Rules”) on October 28, 2022 by way of the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022
(“Amended Rules”). The amendments come into effect
immediately, and introduce a number of important obligations for intermediary platforms
including very quick timelines for resolution of grievances, and acting as a protector
of fundamental rights. It also introduces the construct of “Grievance Appellate
Committee” to decide appeals arising from decisions of an intermediary’s
Grievance Officer.
The Amended Rules are in furtherance of the draft of amendments
released by the Ministry of Electronics and Information Technology (“MeiTy”)
on June 6, 2022. Public comments were sought on the draft, followed by consultation
process. There was push back to several proposed amendments. However, the amendments
have still gone though, imposing several, somewhat vague obligations on intermediary
platforms.
Key Amended Rules
1. Publication of terms and conditions
in local language and obligations regarding unlawful content
Rule 3(1) (a) of the Amended Rules require intermediaries
to:
publish their rules and regulations, privacy policy
and user agreement (“User Terms”) on their websites
and mobile applications in English or any language specified in the Eighth Schedule
to the Constitution for access or usage of its computer resource by any person in
the language of his choice, and
ensure compliance of the same.
Rule 3(1)(b) of the Amended Rules requires intermediaries
to take ‘reasonable efforts’ to ensure that users do not publish
the prescribed categories of unlawful content.
Rule 3(1) (f) of the Amendment Rules require intermediaries
to periodically (at least once in a year) inform users in English or any language
specified in the Eighth Schedule to the Constitution in the language of his choice
about the User Terms or any changes to it.
NDA’s take:
Publication of User Terms in English should suffice.
Intermediaries may consider publishing its User Terms in few other widely spoken
local languages in India (to be chosen from the languages specified in the Eighth
Schedule to the Constitution). This should not be a must have.
The reference to publish User Terms in language of
the user’s choice is very board. Meeting the request to provide User Terms
in a language of user’s choice is cumbersome, burdensome, with an added risk
of translation not been accurate per se. There could also be consistency issues
with the original language of the User Terms and local language.
The scope of the term ‘ensure compliance’
with User Terms under Amended Rule 3 (1) (a) is vague, i.e., it is unclear whether
a) intermediaries are required to ensure that users do not publish any content in
violation of the terms and conditions (this will amount to pre-filtration), or b)
intermediaries are required to simply enforce their terms and conditions, i.e.,
take down content which has violated their User Terms. The press note accompanying
the Draft Amendments indicates that it is the latter interpretation.
The terminology of ‘reasonable efforts’
in Rule 3(1)(b) of the Amended Rules is vague and does not define the exact scope
of obligations.
2. Accessibility to Service
Rule 3(m) of the Amended Rules requires intermediaries to take
all reasonable measures to ensure accessibility of its services to users along with
reasonable expectation of due diligence, privacy and transparency.
NDA’s take:
The requirement to take reasonable measures to ensure
accessibility of services to users, and to meet users’ reasonable expectations
of due diligence, privacy, and transparency is unclear, i.e.:
The terminology of ‘reasonable measures’ is vague
and does not define the exact scope of obligations.
It is unclear what “due diligence” obligations
are being referred to here. The IT Rules as a whole prescribe due diligence obligations
for intermediaries.
The term ‘transparency,’ can be subjective and
is vague i.e., what processes are intermediaries required to be transparent about?
There is no clarity on what could be the ‘reasonable’
expectation of due diligence, privacy and transparency.
The expectation seems to be that the processes used to monitor,
and take down or blocking of content is fair, transparent and reasonable for all.
This could mean that take down or blocking is consistent with the intermediary’s
policies and is undertaken after due notice to the user.
3. Respecting rights accorded to citizens under the
Constitution of India
Rule 3 (n) of Amended Rules require intermediaries to respect
the rights accorded to citizens under the Constitution of India under Article 14,
19 and 21.
NDA’s take:
There has been a plethora of Indian judgments which
clarify that fundamental rights under the Constitution such as freedom of speech
and expression, and protection of life and personal liberty (which has been interpreted
to include the right to privacy), are only enforceable against the State and instrumentalities
of the State. These rights are not enforceable against private entities nor have
been applied in case of publication of views on other media.
For example, an individual cannot require a private
newspaper to publish an article, nor force a private TV channel broadcast their
interview, citing the fundamental right to freedom of speech and expression.
Accordingly, this obligation cannot be imposed on private
intermediary platforms (specially by way of rules, under a principal act which does
not have such contemplation), nor will such an obligation be enforceable against
such platforms and maybe challenged in future.
4. Expeditious Actions
Rule 3(2) of Amended Rules requires intermediaries to:
Resolves complaint in the nature of request for removal
of information or communication link relating to a vast variety of legal issues
including privacy, obscenity, misinformation, impersonations, etc. expeditiously
within 72 hours of such reporting by user and any other complaints within 15 days.
Build appropriate safeguards to avoid any misuses by
users.
NDA’s take:
Intermediaries will need to address and resolve certain
user complaints within 72 hours, except for matters where complaints can be resolved
within 15 days. This may involve making challenging determinations, such as whether
content is (a) patently false or misleading (which may require fact-checking), (b)
threatens public order (which may require determination of local sentiment), among
others within a short period of time.
The terminology of ‘appropriate safeguards to
avoid misuse by users” is vague and does not define the exact scope of obligations.
It appears that regulator wants to make sure that intermediaries are not subjected
to frivolous grievances.
5. Appeals to Grievance Appellate Committee
Rule 3A of the Amended Rules provides for the constitution of ‘one
or more’ Grievance Appellate Committees (“GAC”)
by the Central Government within three months from the date of commencement of the
Amendment Rules (i.e., three months from October 28, 2022, which would be
January
28, 2022):
‘Any person’ aggrieved by a decision of
an intermediary’s grievance officer may appeal against those decisions to
the GAC within 30 days of receipt of the grievance officer’s decision.
The GAC is required to deal with the appeals expeditiously
and ‘endeavour’ to resolve the appeal within 30 days of receipt of the
appeal.
Intermediaries are required to comply with orders of
the GAC, and publish reports of compliance on their websites.
NDA’s take:
The framework of setting up a GAC under the IT Rules
could itself be challenged on grounds of being unconstitutional, as well as ultra vires the primary legislation.
The constitution and qualification of members in the
GAC are not clear. This is critical given the diverse, and new-age issues that will
be taken up before GAC in the future. It is also not clear on how the intermediaries
or GAC will deal with issues which require evidence or judicial intervention.
The process followed by the GAC is unclear. It is also
unclear if they will hear representation from the user and the intermediary before
taking a final decision on the matter.
Final Word
The Amended Rules will require intermediaries to bring in several
process changes. The unclear wording of several of the provisions may result in
litigations. For the time-being, the Amended Rules are in effect and intermediaries
are obligated to comply, lest they risk losing their safe harbour. Intermediaries
should review their existing tech and processes to evaluate if they are sufficient
to ensure compliance with these amendments. Intermediaries should also re-visit
their User Terms to see if the requirements under Amended Rules are being met. As
an example, intermediaries may consider specifically stating that they are committed
to principles of equality, free speech, privacy and personal liberty to broadly
cover the parameters under Articles 14, 19 and 21 of the Constitution of India.
Other relevant changes can be made to their processes and User Terms to meet the
requirements of due diligence, privacy and transparency, expected of intermediaries
under the Amended Rules.
Additional compliances for intermediaries under recently amended Intermediary guidelines
Summary
India notified the amendments to the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT
Rules”) on October 28, 2022 by way of the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022
(“Amended Rules”). The amendments come into effect
immediately, and introduce a number of important obligations for intermediary platforms
including very quick timelines for resolution of grievances, and acting as a protector
of fundamental rights. It also introduces the construct of “Grievance Appellate
Committee” to decide appeals arising from decisions of an intermediary’s
Grievance Officer.
The Amended Rules are in furtherance of the draft of amendments
released by the Ministry of Electronics and Information Technology (“MeiTy”)
on June 6, 2022. Public comments were sought on the draft, followed by consultation
process. There was push back to several proposed amendments. However, the amendments
have still gone though, imposing several, somewhat vague obligations on intermediary
platforms.
Key Amended Rules
1. Publication of terms and conditions
in local language and obligations regarding unlawful content
Rule 3(1) (a) of the Amended Rules require intermediaries
to:
publish their rules and regulations, privacy policy
and user agreement (“User Terms”) on their websites
and mobile applications in English or any language specified in the Eighth Schedule
to the Constitution for access or usage of its computer resource by any person in
the language of his choice, and
ensure compliance of the same.
Rule 3(1)(b) of the Amended Rules requires intermediaries
to take ‘reasonable efforts’ to ensure that users do not publish
the prescribed categories of unlawful content.
Rule 3(1) (f) of the Amendment Rules require intermediaries
to periodically (at least once in a year) inform users in English or any language
specified in the Eighth Schedule to the Constitution in the language of his choice
about the User Terms or any changes to it.
NDA’s take:
Publication of User Terms in English should suffice.
Intermediaries may consider publishing its User Terms in few other widely spoken
local languages in India (to be chosen from the languages specified in the Eighth
Schedule to the Constitution). This should not be a must have.
The reference to publish User Terms in language of
the user’s choice is very board. Meeting the request to provide User Terms
in a language of user’s choice is cumbersome, burdensome, with an added risk
of translation not been accurate per se. There could also be consistency issues
with the original language of the User Terms and local language.
The scope of the term ‘ensure compliance’
with User Terms under Amended Rule 3 (1) (a) is vague, i.e., it is unclear whether
a) intermediaries are required to ensure that users do not publish any content in
violation of the terms and conditions (this will amount to pre-filtration), or b)
intermediaries are required to simply enforce their terms and conditions, i.e.,
take down content which has violated their User Terms. The press note accompanying
the Draft Amendments indicates that it is the latter interpretation.
The terminology of ‘reasonable efforts’
in Rule 3(1)(b) of the Amended Rules is vague and does not define the exact scope
of obligations.
2. Accessibility to Service
Rule 3(m) of the Amended Rules requires intermediaries to take
all reasonable measures to ensure accessibility of its services to users along with
reasonable expectation of due diligence, privacy and transparency.
NDA’s take:
The requirement to take reasonable measures to ensure
accessibility of services to users, and to meet users’ reasonable expectations
of due diligence, privacy, and transparency is unclear, i.e.:
The terminology of ‘reasonable measures’ is vague
and does not define the exact scope of obligations.
It is unclear what “due diligence” obligations
are being referred to here. The IT Rules as a whole prescribe due diligence obligations
for intermediaries.
The term ‘transparency,’ can be subjective and
is vague i.e., what processes are intermediaries required to be transparent about?
There is no clarity on what could be the ‘reasonable’
expectation of due diligence, privacy and transparency.
The expectation seems to be that the processes used to monitor,
and take down or blocking of content is fair, transparent and reasonable for all.
This could mean that take down or blocking is consistent with the intermediary’s
policies and is undertaken after due notice to the user.
3. Respecting rights accorded to citizens under the
Constitution of India
Rule 3 (n) of Amended Rules require intermediaries to respect
the rights accorded to citizens under the Constitution of India under Article 14,
19 and 21.
NDA’s take:
There has been a plethora of Indian judgments which
clarify that fundamental rights under the Constitution such as freedom of speech
and expression, and protection of life and personal liberty (which has been interpreted
to include the right to privacy), are only enforceable against the State and instrumentalities
of the State. These rights are not enforceable against private entities nor have
been applied in case of publication of views on other media.
For example, an individual cannot require a private
newspaper to publish an article, nor force a private TV channel broadcast their
interview, citing the fundamental right to freedom of speech and expression.
Accordingly, this obligation cannot be imposed on private
intermediary platforms (specially by way of rules, under a principal act which does
not have such contemplation), nor will such an obligation be enforceable against
such platforms and maybe challenged in future.
4. Expeditious Actions
Rule 3(2) of Amended Rules requires intermediaries to:
Resolves complaint in the nature of request for removal
of information or communication link relating to a vast variety of legal issues
including privacy, obscenity, misinformation, impersonations, etc. expeditiously
within 72 hours of such reporting by user and any other complaints within 15 days.
Build appropriate safeguards to avoid any misuses by
users.
NDA’s take:
Intermediaries will need to address and resolve certain
user complaints within 72 hours, except for matters where complaints can be resolved
within 15 days. This may involve making challenging determinations, such as whether
content is (a) patently false or misleading (which may require fact-checking), (b)
threatens public order (which may require determination of local sentiment), among
others within a short period of time.
The terminology of ‘appropriate safeguards to
avoid misuse by users” is vague and does not define the exact scope of obligations.
It appears that regulator wants to make sure that intermediaries are not subjected
to frivolous grievances.
5. Appeals to Grievance Appellate Committee
Rule 3A of the Amended Rules provides for the constitution of ‘one
or more’ Grievance Appellate Committees (“GAC”)
by the Central Government within three months from the date of commencement of the
Amendment Rules (i.e., three months from October 28, 2022, which would be
January
28, 2022):
‘Any person’ aggrieved by a decision of
an intermediary’s grievance officer may appeal against those decisions to
the GAC within 30 days of receipt of the grievance officer’s decision.
The GAC is required to deal with the appeals expeditiously
and ‘endeavour’ to resolve the appeal within 30 days of receipt of the
appeal.
Intermediaries are required to comply with orders of
the GAC, and publish reports of compliance on their websites.
NDA’s take:
The framework of setting up a GAC under the IT Rules
could itself be challenged on grounds of being unconstitutional, as well as ultra vires the primary legislation.
The constitution and qualification of members in the
GAC are not clear. This is critical given the diverse, and new-age issues that will
be taken up before GAC in the future. It is also not clear on how the intermediaries
or GAC will deal with issues which require evidence or judicial intervention.
The process followed by the GAC is unclear. It is also
unclear if they will hear representation from the user and the intermediary before
taking a final decision on the matter.
Final Word
The Amended Rules will require intermediaries to bring in several
process changes. The unclear wording of several of the provisions may result in
litigations. For the time-being, the Amended Rules are in effect and intermediaries
are obligated to comply, lest they risk losing their safe harbour. Intermediaries
should review their existing tech and processes to evaluate if they are sufficient
to ensure compliance with these amendments. Intermediaries should also re-visit
their User Terms to see if the requirements under Amended Rules are being met. As
an example, intermediaries may consider specifically stating that they are committed
to principles of equality, free speech, privacy and personal liberty to broadly
cover the parameters under Articles 14, 19 and 21 of the Constitution of India.
Other relevant changes can be made to their processes and User Terms to meet the
requirements of due diligence, privacy and transparency, expected of intermediaries
under the Amended Rules.
You can direct your queries or comments
to the authors
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