July 18 2022: The Ministry of Electronics and Information Technology (MeitY) released proposed amendments on Information Technology (Intermediary Guidelines and Code of Ethics) 2021 (IT Rules 2021) and invited feedback on the same.
While the proposed amendments are considered a step in the right direction, they have also raised eyebrows of stakeholders. Consumer Unity & Trust Society (CUTS) has submitted its comments on proposed amendments while also highlighting unaddressed concerns in other parts of the IT Rules 2021.
Key CUTS comments are listed below can also be accessed here.
Assess how much proposed amendment and IT Rules 2021 are aligned with intended aims of facilitating a conducive environment of doing digital business as well as protecting consumers’ interests, by conducting Regulatory Impact Assessment (RIA).
- Balance power of the government and of the intermediaries by ensuring adequate representation of stakeholders including consumer organisations in the composition of Grievance Appellate Committee (GAC).
- Move towards Online Dispute Resolution (ODR) mechanisms, specifically with respect to the GAC. Simplify the grievance redressal mechanism and make them accessible for all aggrieved consumers.
- Distinguish different types of intermediaries and approach compliances in a graded manner. Provide more clarity on the definition of ‘compliance’ within the rules or the Information Technology Act, 2000.
- Make reasonable restrictions necessarily proportionate, wherein the government should be required to show evidence of harm before applying reasonable restrictions.
- Make all forms of content removal subject to being sanctioned by a reasoned order in case of ex-post or be done after reasons are recorded in writing, in case of ex-ante removal. The same should be available in the public domain to ensure transparency and accountability.
Comments from IAMAI reported earlier here
India has the second highest number of social media users in the world. Social media and instant messaging services have enabled Person to Person (P2P) communication and encouraged transparent Person to Government (P2G) and G2P information exchange. While the popularity of such platforms has the potential for turning them into a vehicle for inclusive, democratic and free expression for consumers, their misuse has caused much harm to consumers through the spread of various kinds of problematic content. These include incorrect, sensational, provocative, divisive and hateful content, Child Sexual Abuse Material (CSAM), woman abuse, etc.
In light of the above, the Government of India (GoI), through the Ministry of Electronics and Information Technology (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules), on 25th February, 2021, by exercise of its powers under Section 87, of the Information Technology Act, 2000 (IT Act), which replaced the previous rules – Information Technology (Intermediaries guidelines) Rules, 2011.
While the rules were considered to be a step in the right direction, they also raised eyebrows of all stakeholders, due to various lacunas present in them. These included: risk of infringement of consumers fundamental right to privacy, hindering free speech of consumers, reducing the Ease of Doing Digital Business (EoDDB) for intermediaries (on account of excessive compliance burden and providing for criminal liability), as well as arbitrary/ excessive delegation of power to the executive for ordering intermediaries to take down content, and compel them to provide information and assistance for various purposes. The rules were challenged in court by various intermediaries.
Subsequently, MeitY released a document containing Frequently Asked Questions on the Part-II of the IT Rules, titled ‘Open Safe & Trusted and Accountable Internet’ (FAQ), on 1 st November, 2021. Notably, the document is not a legal document, and does not replace or amend the IT Rules, or the IT Act.
Intermediaries began to comply with the IT Rules, and filled their monthly compliance reports. In light of the same compliances, a social media platform has sued the government on orders for blocking content. With these recent developments, it is important to state that MeitY had proposed amendments to the IT Rules, and had invited comments on them.