BananaIP’s Comments and Suggestions – Proposed Draft of Amendments to IT Rules, 2021

Background

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was proposed by the Ministry of Electronics and Information Technology on 25^th February, 2021. The draft amendments to the same were made available for public scrutiny on the 6^th June, 2022, seeking comments and suggestions within thirty days from that date, i.e. by 6^th July, 2022, to dhawal.gupta@meity.gov.in or notan.roy@meity.gov.in, in MS Word (or compatible format) or machine readable PDF format.

Part I – Proposed Changes and General Comments

Proposed Changes:

The first part highlights some of the important changes that are intended to be made to the Rules. Broadly speaking, there are three major changes which are discussed below:

1. The jurisdiction of the Grievance Officer (henceforth referred to as “GO”) and specification of time limit of response, which states within what time from the receipt of complaint must action be taken under Rule 3(2).
2. Changes that are made to obligations imposed on intermediaries as defined by the Act under Rule 3(1)(a), 3(1)(b), 3(1)(m) and 3(1)(n) are as follows:

• Rule 3(1)(a) requires intermediaries to ensure that users comply with all the guidelines or laws as framed by the intermediary themselves or the government, are adhered to by the users.
• Rule 3(1)(b) makes it necessary for the intermediaries to inform the users about these guidelines, thereby also stating that any infringement of provisions under Rules from 3(1)(b)(i) to 3(1)(b)(x) would require action to be taken by the respective intermediary.
• Rule 3(1)(m) makes it necessary for the intermediary to take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency.

3. The setting up of a Grievance Appellate Committee (henceforth referred to as “GAC”), defined under Rule 2(1)(l), its composition and other details are discussed under Rule 3(3). The constitution of GAC as an alternate body to file an appeal, as an alternative grievance redressal mechanism in case of dissatisfaction with the order of GO. It does not form a part of a hierarchy of any kind, and simply acts as an additional body which can process appeals. The gist of the amendment is that the GAC:

• Is constituted by a Chairperson and such other members as the Central Government may prescribe;
• An appeal before the GAC can be filed within 30 days of receipt of communication from the respective GO;
• The appeal must be disposed of within 30 days; and
• Every order passed by the GAC would be binding on the intermediary and they must comply with the same.

General Comments:

In essence, it is commendable that the amendment intends to create more accountability by the intermediary, which is very much required in India at this stage. In furtherance of achieving the goals set out in the proposed amendments, we are hereby submitting our comments as follows:

1. We believe there is room to create more specificity under Rule 3(1)(b)(ii), to call for inclusiveness by the intermediaries and provide an objective standard, using which the intermediary may determine if the content violates the Rules or any other applicable provisions.
2. With reference to accessibility of content on the internet, we suggest the inclusion of the definition of “access services,” under Rule 2(1)(b) within Rule 3(1)(m) which imposes an obligation on intermediaries to improve accessibility, along with reasonable expectation of due diligence, privacy and transparency. For a better understanding of accessibility, one must also refer to the Government of India’s Accessible India Campaign, which intends to, within a set period of time, make access to public websites, online services and platforms accessible to persons with disabilities. This can further be read with the recently published Draft National Policy for Persons with Disabilities as well as the Rights to Persons with Disabilities Act (RPwD), 2016, which extends accessibility compliance to private parties as well.
3. Rule 3(2)(a) mandates the GO to acknowledge complaints as soon as possible and dispose of them in a speedy and efficient manner. In this direction, few of our suggestions pertain to the time limit required for a more transparent functioning of the system, and our specific comments in Part II discuss this even further.
4. With reference to Rule 3(3) which constitutes the GAC, we observed that there is lack of clarity and transparency as to the appointment of officers to the GAC as well as their tenure, jurisdiction, and other such matters. This will be further discussed elaborately in Part II.
5. With reference to content filtering by significant social media intermediaries, it is generally assumed that most of these intermediaries are able to implement independent algorithms which determine content recommendations to its users, thereby prioritising some forms of content over others. It is recommended that the Rules be amended further to avoid random prioritisation or inconsistent targeting of content. Additionally, the intermediaries must also be obligated to inform a user after removing content posted by a user or disabling access to a feature or the platform, along with legitimate reasons for doing the same. This has been discussed in detail in our specific comment on Rule 4(4).
6. Rule 4(6) states that significant social media intermediaries shall implement an appropriate mechanism for the receipt and acknowledgement of complaint. However, to avoid random dismissals of user complaints without stating any legitimate reason to the complainant, we suggest to mandate the intermediary to have a portal through which the complainant may track the status and stage of the process of their complaint(s). The same has been discussed in a detailed manner in the table provided in Part-II.
7. Rule 7 discusses the non-observance of Rules and the penalties imposed. In the IT Rules, it is mentioned how intermediaries are required to comply with certain directions provided by law, governmental institutions, judicial bodies and so on. For example, an order to comply with the GAC’s directions, or the mandatory communication of terms and conditions to the users of the intermediary and so on. We have provided our suggestion with respect to the same under our specific comments in Part-II

Part II – Specific Suggestions and Analysis

The following table is divided into three columns. The first column marks the provision from proposed draft amendment as indicated by the Press Note dated 6th June, 2022. The second column marks our suggestion to the provision indicated in first column, and the third column refers to comments that provide reasons for the suggestion given in the second column.

Rule No.	Proposed Draft Amendments	Our Suggestions	Specific Comments
Rule 3(1)(b)(ii)	is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force;	(a) is pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, or otherwise inconsistent with or contrary to the laws in force; or (b) when viewed by a reasonable person, is defamatory or libellous, obscene, insulting or harassing on the basis of gender, religion, disability, class, creed or caste, promotes or supports harm to self or others, racially or ethnically objectionable, is hurting sentiments of any protected group/class of individuals, or encouraging money laundering or gambling;	The suggestion is made to make the provision more specific and inclusive of the entities that could be affected or instances that could take place due to content on an intermediary platform. The suggested provision also provides an objective standard, using which the intermediary may determine if the content violates the Rules or any other applicable provisions.
Rule 3(1)(m)	(m) the intermediary shall take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency;	(m) the intermediary shall take all reasonable measures, including access services as defined under Rule 2(1)(b), to ensure accessibility of its services to all users along with reasonable expectation of due diligence, privacy and transparency;	n the interest of making the provision more specific, based on Rule 2(1)(b) which is being defined as “…any measure, including technical measures such as closed captioning, subtitles and audio descriptions, through which the accessibility of online curated content may be improved for persons with disabilities;”, we are suggesting the accessibility of services offered by intermediaries should specifically include persons with disabilities. Thus, by referring to the access services defined under Rule 2(1)(b), and incorporating this definition in the relevant clauses, the provision acquires more clarity about the measures required to be taken to enhance accessibility of the intermediary platforms. Further, in light of ensuring accessibility and appropriate accommodations to make the platform more inclusive, the suggested provision helps to bring consistency in accordance with our earlier comments on accessibility.
Rule 3(2)(a)	3(2)(a)(i) acknowledge the complaint, including suspension, removal or blocking of any user or user account or any complaint from its users in the nature of request for removal of information or communication link relating to sub-clauses (i) to (x) of the clause (b) under sub-rule (1) of rule 3, within twenty-four hours and dispose of such complaint within a period of fifteen days from the date of its receipt; Provided that the complaint in the nature of request for removal of information or communication link relating to sub-clauses (i) to (x) of the clause (b) under sub-rule (1) of rule 3, shall be acted upon expeditiously and redressed within 72 hours of reporting: Provided further that appropriate safeguards may be developed by the intermediary to avoid any misuse by users. (ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.	3(2)(a)(i) acknowledge the complaint, including any accompanying request for suspension, removal or blocking of any user or user account or any complaint from its users in the nature of request for removal of information or communication link relating to sub-clauses (i) to (x) of the clause (b) under sub-rule (1) of rule 3, within twenty-four hours; (removed: and dispose of such complaint within a period of fifteen days from the date of its receipt;) (ii) dispose of the complaint within a period of fifteen days from the date of its receipt by communicating to the complainant adequate reason(s) for such disposal: Provided that the complaint in the nature of request for removal of information or communication link relating to sub-clauses (i) to (x) of the clause (b) under sub-rule (1) of rule 3, shall be acted upon expeditiously and redressed within 72 hours of reporting: Provided further that appropriate safeguards may be developed by the intermediary to avoid any misuse by users. (iii) receive and acknowledge any order, notice or direction issued by the Appropriate Government or its agency, any competent authority or a court of competent jurisdiction within 24 hours.	This suggestion has been made in order to provide more clarity in the existing provisions. The suggested provision is aimed towards increasing transparency and imposing a time limit for intermediaries to comply with the directions or orders of the court, Appropriate Government and its agencies.
Rule 3(3)	(3)(3)(c) The Grievance Appellate Committee shall deal with such appeal expeditiously and shall make an endeavour to dispose of the appeal finally within 30 calendar days from the date of receipt of the appeal; (d) Every order passed by the Grievance Appellate Committee shall be complied by the concerned Intermediary.	The Grievance Appellate Committee shall acknowledge such appeal within 7 days, deal with such appeal expeditiously and shall make an endeavour to dispose of the appeal finally within 30 calendar days from the date of receipt of the appeal; 3(3)(d) Every order passed by the Grievance Appellate Committee shall be complied with by the concerned Intermediary, as early as possible, but in no case later than 24 hours from the date of receipt of such order.	The suggested provision imposes a time limit on the intermediary to acknowledge an appeal to the GAC, and to comply with the GAC order. The suggested provisions aim to increase transparency in the formation of the committee, eligibility and selection of members, exclusion of interested parties from constituting such a board, and so on. Considering that the provision of information in a complaint could be sensitive in nature, more clarity is necessary with respect to the GAC’s functioning and its tenure.
Rule 4(4)	A significant social media intermediary shall endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this sub-rule:	A significant social media intermediary shall (Remove: endeavour to) deploy technology-based measures, including automated tools or other mechanisms only to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this sub-rule:	The suggested provision is intended to narrow down the scope of what can be restricted or flagged by the intermediary. It is our observation that this provision may be interpreted in a way that allows intermediaries to filter out content that might not necessarily be infringing on anyone’s rights. Removal of such information is then left in an unsystematic way to the intermediary’s optional interests. This could be recognized as restrictive of the user’s freedom to use the platform. Hence, our suggestion firstly makes it mandatory to make use of the measures to identify information as stated in the provision and it also limits these measures to be used to flag only such content.
Rule 4(6)	The significant social media intermediary shall implement an appropriate mechanism for the receipt of complaints under sub-rule (2) of rule 3 and grievances in relation to the violation of provisions under this rule, which shall enable the complainant to track the status of such complaint or grievance by providing a unique ticket number for every complaint or grievance received by such intermediary:	The significant social media intermediary shall implement an appropriate mechanism for the receipt of complaints under sub-rule (2) of rule 3 and grievances in relation to the violation of provisions under this rule, which shall enable the complainant to track the status of such complaint or grievance by providing a unique ticket number traceable on a complaint tracking portal or any other such mechanism which displays the current status for every complaint or grievance received by such intermediary:	The suggested provision is aimed at increasing transparency in the redressal process of the intermediary. In numerous instances, the intermediaries after a casual acknowledgement of a complaint, simply deny the action sought near to the time when the complaint is about to lapse/expire. Despite the unique ticket number, there is a possibility of information being kept from disclosing to the person making the complaint due to the absence of a uniform tracking mechanism. The suggested provision mandates that significant social media intermediaries must have a complaint tracking portal, or any other such mechanism, on which the complainant can enter its unique ticket number to view the current status or the stage of scrutiny of its complaint(s).
Rule 7	Where an intermediary fails to observe these rules, the provisions of sub-section (1) of section 79 of the Act shall not be applicable to such intermediary and the intermediary shall be liable for punishment under any law for the time being in force including the provisions of the Act and the Indian Penal Code.		The Rule rightly proposes the removal of safe harbour and/or protection generally available to intermediaries but does not provide any time period with respect to the same. Neither does the rule provide any mechanism for reviving the intermediary safe harbour or protection. The same maybe incorporated in the rules to give clarity or provide clarity in this aspect.

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These suggestions are compiled and submitted by the Consulting and Strategy Team at BananaIP Counsels

Disclaimer

The views, opinions, comments and suggestions provided in this document are based on the understanding of, and information available to attorneys and experts at BananaIP Counsels working on Information Technology law and related matters. It may be noted that opinions of other legal experts may differ from those of BananaIP’s attorneys and experts. The comments, inputs and suggestions are based on legal research and policy contributions of attorneys/experts at BananaIP, and the firm is not representing any client or a third party with respect to the comments/inputs provided in this document. Also, it may be noted that views of other attorneys at BananaIP may vary from the opinions of those submitting this document.

The Proposed draft amendment to the IT Rules, 2021 can be accessed at: Press Note dated 6 June 22 and Proposed draft amendment to IT Rules 2021.pdf (meity.gov.in)