The Amendments to the IT Rules, 2021

Recently, the Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Key-highlight of the Amended Rules

• Mandatory Grievance Redressal Mechanism

• The amendment paved the way for the setting up of one or more centrally appointed grievance appellate committees (GACs).
• The idea behind setting up of the committees is to give users of social media platforms, including Facebook and Twitter, recourse - other than approaching the courts - to settle complaints.

• Due Diligence to be followed by Intermediaries:
  • In case, due diligence is not followed by the intermediary, safe harbour provisions will not apply to them.
• Ensuring Online Safety and Dignity of Users:
  • The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022, provide a shorter timeline of 24 hours to act on sensitive content, and require significant social media intermediaries to “respect all the rights accorded to the citizens under the Constitution, including in Articles 14, 19 and 21.”
  • They also give a breather to intermediaries on some aspects, such as due diligence.

• Additional Due Diligence for the Significant Social Media Intermediaries:
  • Appointments: Need to appoint a Chief Compliance Officer, a Nodal Contact Person and a Resident Grievance Officer, all of whom should be residents of India.
  • Compliance Report: Need to publish a monthly compliance report mentioning the details of complaints received and action taken on the complaints as well as details of contents removed proactively.
• Enabling Identity of the Originator:
  • Significant social media intermediaries providing services primarily in the nature of messaging shall enable the identification of the first originator of the information.
  • Required only for the purposes of prevention, detection, investigation, prosecution or punishment of an offence related to the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order,
  • Or of incitement to an offence relating to the above or in relation to rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term of not less than five years.

• Removal of Unlawful Information:
  • An intermediary upon receiving actual knowledge in the form of an order by a court or being notified by the Appropriate Govt. or its agencies through an authorized officer should not host or publish any information which is prohibited under any law in relation to the interest of the sovereignty and integrity of India, public order, friendly relations with foreign countries etc.

What was the need to amend the IT Rules, 2021?

• First, there was a need to ensure that the interests and constitutional rights of netizens which are not being contravened by big tech platforms.
• To strengthen the grievance redressal framework in the Rules
• The compliance with these SMIs should not impact early-stage Indian start-ups.

What are the amendments made?

A set of proposed amendments are can be broadly classified into two categories:

• The first category involved placing ‘additional obligations’ on the SMIs to ensure better protection of user interests and,
• The second category involved the institution of an appellate mechanism for grievance redressal.

What are the additional obligations placed on the SMIs?

• The obligation on the SMIs has now been extended to ensure that its users are in compliance with the relevant rules of the platform. Further, the SMIs are required to ‘make reasonable efforts to prevent prohibited content being hosted on its platform by the users. Earlier this was limited to merely informing its users of the “rules and regulations, privacy policy and user agreement” that governed its platforms along with the categories of content to the users.
• They are now obliged to Respect all the rights accorded to the citizens under the Constitution, including in articles 14, 19 and 21.
• SMIs are now obligated to remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises.
• They have to remove such information within 72 hours of the complaint being made. Given the virality with which content spreads, this is an important step to contain the spread of the content.
• Lastly, SMIs have been obligated to take all reasonable measures to ensure the accessibility of their services to users along with the reasonable expectation of due diligence, privacy and transparency.

Role of Grievance Appellate Committees:

• Prior to the IT Rules, 2021, platforms followed their own mechanisms and timelines for resolving user complaints.
• The IT Rules uniformed this by mandating that all social media platforms should have a grievance officer who would acknowledge the receipt of a complaint within 24 hours and dispose of it within 15 days.
• However, the performance of the current grievance redressal mechanism has been sub-optimal. To remedy this, the government has instituted Grievance Appellate Committees (GAC).
• The committee is styled as a three-member council out of which one member will be a government officer (holding the post ex officio) while the other two members will be independent representatives.
• Users can file a complaint against the order of the grievance officer within 30 days.
• Importantly, the GAC is required to adopt an online dispute resolution mechanism which will make it more accessible to the users.