IFF's response to the consultation on the draft amendment to the IT Rules, 2021 relating to due diligence by an intermediary
tl;dr
The Ministry of Electronics and Information Technology proposed yet another revision (Revised Amendment) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on January 17, 2023. The Revised Amendment will have a significant impact on online freedom of expression and access to online information, as it makes the Union Government the last arbiter of what news can and cannot be published. It does so by vesting PIB or any other agency of the Union Government to which the news story relates with the power to remove any social media and news media content, namely any information identified as 'fake' or 'false'. We have submitted our response highlighting the concerns pertaining, but not limited to executive overreach, ambiguity in definitions, violation of the Supreme Court’s Shreya Singhal judgement and barriers in the consultation process. Our broad recommendation is to withdraw the IT Rules, 2021 in entirety. We have also requested the government to issue a white paper outlining the government's intent regarding intermediary liability and online gaming regulation.
Background:
The Ministry of Electronics and Information Technology (MeitY) published the draft amendments to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in relation to online gaming (Proposed Amendments, 2023) on January 2, 2023. The Proposed Amendments, 2023 establish due diligence and KYC requirements under a new Rule 4A for online gaming intermediaries, to be observed in addition to those under Rule 3. On January 13, 2023, we submitted our detailed comments on the Proposed Amendments, 2023 highlighting the increased regulatory and compliance burden as well as the contentious legality of the Proposed Amendments, 2023.
Hours before the deadline, MeitY proposed another change to the IT Rules, 2021 on January 17, 2023 relating to due diligence by an intermediary under rule 3(1)(b)(v) (Revised Amendment). Revised Amendment intend to create a new category for the removal of social media and news media content, specifically any information designated as 'fake' or 'false' by the Press Information Bureau (PIB) or any other Union Government agency to whom the news story relates.
Feedback was invited from the public on the Revised Amendment as well. The extended deadline for providing feedback on both the amendments was January 25, 2023. On the last day of submitting the comments, the deadline was extended till February 20, 2023. However, this extension was limited to the provisions relating to due diligence by an intermediary under rule 3(1)(b)(v) (Revised Amendment) and did not extend to the amendments pertaining to online gaming (Proposed Amendments, 2023)
Concerns:
The Revised Amendment represents a significant shift in scope. It also increases the number of stakeholders affected by the Revised Amendments' wide-ranging effects, and thus the number of people who will be willing to comment. However, the effective consultation period for these stakeholders remained only for a week, that is from January 18, 2023 to January 25, 2023. The revised Rule 3(1)(b)(v) may require intermediaries to remove content that has been 'fact-checked' by the Union Government, effectively making the Union Government arbiter of permissible online speech. Upon declaration of content as “fake” or “false”, the intermediaries, including social media intermediaries (Facebook, Twitter etc.) as well as Internet Service Providers (ISPs) (Airtel, ACT, Jio etc.) will be required to “make reasonable efforts to cause the user […] not to host, display, […], publish, transmit [...] or share” such information (which may likely be in the nature of news). The PIB, or any other Union Government agency to which the relevant news report refers, could effectively issue a takedown order to social media platforms and ISPs.
This will have a significant impact on online freedom of speech, expression, and information as the Union Government's decision may influence whether intermediaries allow it on their particular platforms or not. The Revised Amendments,2023 pose a major risk of the violation to principles of natural justice. MeitY's processes for orders of taking down the information under Section 69A of the Information Technology Act, 2000 do not even provide the originators and creators of information with a notice, a hearing, or even a copy of the blocking order issued in respect of their URLs, before or after they are censored and thus bypasses the principles of natural justice making it an unconstitutional exercise. They have a direct impact on news publishers' fundamental right to speech and expression since they can affect the publication and dissemination of news information. The Supreme Court of India and the International Covenant on Civil and Political Rights(ICCPR) recognise the right to receive information and knowledge as part of free speech and expression, and thus impacts the news readers as well.
A power that allows PIB and other authorised government entities which are not currently statutorily empowered to take-down online content or news cannot be made through the rules notified by the Executive, and requires Parliamentary intervention. The Revised Amendment seeks to establish a new procedure for internet censorship that differs from the process statutorily prescribed under Section 69A of the IT Act, which empowers MeitY to order the take down of content in certain enumerated and specific conditions. Section 69A empowers MeitY to take down online content only when it is necessary or expedient in the interest of (i) sovereignty and integrity of India, (ii) defence of India, (iii) security of the State, (iv) friendly relations with foreign States; (v) public order; or (vi) for preventing incitement to the commission of any cognizable offence. The proposed procedure is inconsistent with constitutional principles, and requires a parliamentary enactment to expand the scope of Section 69A.
Violation of the Shreya Singhal judgement!
Further, the Revised Amendment are in gross violation of the Hon’ble Supreme Court of India ruling in Shreya Singhal v. Union of India (2013) which laid down strict procedures for blocking of content.The judgement upheld Section 69A on the grounds that blocking can take place only by a reasoned order after complying with several procedural safeguards, including a hearing to the originator and intermediary, and that there are only two ways in which a blocking order can be passed - one by the Designated Officer after complying with the 2009 Rules, and the other by the Designated Officer when he has to follow an order passed by a competent court. The Revised Amendment will circumvent safeguards by introducing a third avenue for passing blocking orders.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were challenged in the Madras High Court on the ground that they are ultra vires, inter alia, Articles 14 and 19 of the Constitution. In its order dated September 16, 2021, the Madras High Court stated that “there is substance in the petitioners' grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.” But in relation to government control over speech on social media, the Madras High Court had also noted that “There is a genuine apprehension, as the petitioners suggest, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.” In light of these remarks from constitutional Courts, it is upsetting to note that these amendments are being introduced without fixing any of the identified shortcomings with the IT Rules, 2021.
Ambiguous definitions!
The Revised Amendment does not define "fake" or "false" or set parameters, criteria, considerations, or tests that the PIB and other government organisations will use to categorise something as such. This will exacerbate vagueness, which the Supreme Court ruled unconstitutional in Shreya Singhal, and make the IT Rules, 2021 more susceptible to misuse. Civil society organisations, scholars, academics, and researchers have raised concerns about the lack of definitions for phrases like "fake news" and "false information."
Statements issued by concerned organisations and individuals on the Revised Amendments:
Expressing their concern that the “determination of fake news cannot be in the sole hands of the government.”, Editors Guild of India released a statement on January 18 stating that “(the Revised Amendments) gives authority to PIB to determine the veracity of news reports, and anything termed ‘fake’ will have to be taken down by online intermediaries, including social media platforms.”
DIGIPUB, a consortium of digital news outlets in India, raised its concerns through a statement released on January 19. It said that “the Proposed Amendments assign arbitrary and discretionary power to the government of India to determine whether the content is “fake” without prescribing any procedures or recourse therefrom”.
The Indian Newspaper Society(INS) while expressing its concern over the Revised Amendment said it would seriously impact the functioning of the press in India and hand over the responsibility of checking statements relating to the Central government to any agency of the Centre “to arm itself with powers to proscribe any criticism of its actions”.
Concerns with the public consultation process
We are particularly concerned that the Revised Amendment with a far broader scope, was released on January 17, 2023 which was the last day of the ongoing online gaming intermediary consultation. By this point, several stakeholders would have already submitted their comments on the Proposed Amendments, 2023. Notably, since the changes to rule 3(1)(b)(v) bear little relation to online gaming intermediaries, the pool of stakeholders who would be impacted by these amendments to the IT Rules has also been significantly altered. The extended deadline for submitting comments on both the amendments allowed stakeholders only one week to respond, thus defeating the purpose of an extension and rendering it ‘notional’. We wrote to MeitY on January 12, 2023, requesting a deadline extension for the consultation on the Proposed Amendments, 2023 in accordance with the Pre-Legislative Consultation Policy, 2014. This procedure, which is entirely online, causes friction in the consultation process and is not reflective of the country's actual digital reality. Furthermore, the submissions made during this public consultation process will not be made public. Such practices adopted by the Ministry reduce public trust in the policy consultation process and make it more difficult for interested stakeholders to meaningfully engage with the government because there is no opportunity to understand / engage with the consultation responses of other stakeholders or provide counter-comments to them. On the final day for submitting consultation responses, the Ministry extended the deadline to submit feedback on the Revised Amendment. However, this will be of little help as most people would have already sent in their comments by the last day. We believe it will be more effective if the government provides an adequate amount of time for people to submit their comments in the first place, rather than extending the deadline on the final day, which makes it difficult for the stakeholders to meaningfully engage and participate in the consultation process.
Our Recommendation
The IT Rules, 2021 have been widely criticised and legally challenged for impeding free speech and expression; our broad recommendation is that they must be withdrawn in entirety. Consultation processes must not be on paper only. Therefore we also urge MeitY to issue a white paper outlining the government's intent regarding intermediary liability, including a clear articulation of the issues/risks/harms considered by the government, the results and analysis of any cost-benefit analysis undertaken by the government, the types/kinds of options and/or alternatives considered by the government to deal with these issues/risks/harms and their position(s) on each of them, and so on. This was also mentioned in a letter to MeitY dated November 17, 2022, and has been our persistent request.
Important links:
- Updated IT Rules, 2021 including the Proposed Amendments, 2023 and Revised Amendment in colour (link)
- Proposed Amendments, 2023 (link)
- IFF’s detailed comments on the Revised Amendments, 2023 (link)
- IFF’s detailed comments on the Proposed Amendments, 2023 (link)
- IFF’s letter to extend the period of consultation for the Draft amendments to the IT Rules, 2021 in relation to online gaming (link)