An Indian Code of Conduct is not a solution for “de-platforming”

IFF’s submission on the “Proposed draft amendment to the IT Rules, 2021”

tl;dr

On June 06, 2022, the Ministry of Electronics and Information Technology (“MEITY”) proposed amendments to Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021” (hereinafter, “IT Rules, 2021”) and invited comments on the draft. In our comments on the “Proposed draft amendment to the IT Rules, 2021” (hereinafter, “Draft Amendment”) we reiterated our demand to recall the IT Rules, 2021 and also this Draft Amendment. We highlighted how the draft amendments will deepen an injury to the digital rights of every Indian social media user. For instance they propose the establishment of a government censorship body for social media (the, "Grievance Appellate Committee) that will make bureaucrats arbiters of our online free speech!

Why should you care?

As we have written before, the IT Rules, 2021 are bad -- but they are about to become a lot worse. As per a Draft Amendment proposed by MEITY the government over our social media posts is about to become a lot more severe and all of us can expect more censorship! While we are concerned with these changes, there are many legitimate concerns on social media companies. For instance they lack transparency in their decision making in decisions such as "deplatforming" users. The answer to this cannot be a blunt, take it or leave it approach that increases government control. We need a thoughtful consideration by MeitY to formulate a rights-respecting approach towards platform regulation.

Old wounds remain unrepaired

The IT Rules, 2021 are subordinate legislation made under Section 87 read with Section 79 of the Information Technology Act, 2000 (hereinafter, “IT Act, 2000”) which provides for safe-harbour immunities for intermediaries. Basically, an online service provider that helps us connect or exchange information is not liable for the legality of the content of an end user. For this ,they have to take down, or disable access to services when directed by the government. As per law, the government can make rules to specify how this can be done. But what has happened with the IT Rules, 2021 has been far beyond the ambit of law.

The IT Rules, 2021 have been unequivocally criticised by experts, civil society, digital rights groups, industry bodies, technology companies, technical groups and members of the press. The Editors Guild of India in their statement on IT Rules, 2021 pointed out how they go beyond intermediaries to now even regulate publishers while stating they, “fundamentally alter how publishers of news operate over the internet and have the potential to seriously undermine media freedom in India”. They also stated that “various provisions in these rules place unreasonable restrictions on media at large”. Special Rapporteurs from the United Nations have called these rules incompatible with ‘international law and standards related to the right to privacy and to freedom of opinion and expression” and sought their withdrawal.

We have, in the past, written to MEITY and published a detailed analysis listing our issues with the IT Rules, 2021. Through our strategic litigation vertical, IFF is representing LiveLaw Media Pvt. Ltd. before the Kerala High Court in their challenge to the legality of IT Rules, 2021. A single-judge bench of that court has directed the Union Government to not take coercive action against LiveLaw Media Pvt. Ltd. under Part III of the IT Rules, 2021. We are also representing Mr. T.M. Krishna in proceedings before the Madras High Court where a Division Bench of Court has stayed Rules 9(1) and 9(3) of the IT Rules, 2021 while observing that the oversight mechanism in the Rules may “rob the media of its independence”.

Separately, the Bombay High Court in Agij Promotion of Nineteen One Media Pvt. Ltd. & Ors. v. Union of India & Anr has also stayed Rules 9(1) and 9(3) of IT Rules, 2021. The Bombay High Court has observed that as a result of these rules:

“people would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.”

All these at present are stayed as a transfer petition which seeks to club all of them filed by the Union Government is pending before the Hon'ble Supreme Court of India.

IFF’s comments on the Draft Amendment

Despite the unequivocal cross-sectoral criticism and court orders, IT Rules, 2021 continue to be in force. Instead of withdrawing these rules in their entirety, MEITY has proposed amendments that perpetuate the illegalities and raise independent concerns, which we have highlighted in our submissions:  

1. Highs and lows of the consultation process: Prior to releasing the latest version, MEITY released a notice on June 01, 2022, seeking comments on the proposed draft amendments to Part I and II of the IT Rules, 2021. Astonishingly, on June 02, 2022, MEITY withdrew the proposal without any justification. Finally, on June 06, 2022, MEITY issued and sought comments on the Draft Amendments, which are identical to the draft published on June 02, 2022. The Draft Amendments were published along with a Press Note and/or Cover Note, which does not have any legal effect. This, unfortunately, isn’t the first instance in which MEITY has withdrawn, recalled, or changed a document after publishing it (see here and here). Although such errors, hiccups and recalls significantly reduce the quality as well as the sanctity of the consultation process, MEITY has made some positive efforts to increase public participation in the consultation process. On June 23, 2022, MEITY provided members of civil society and digital rights groups such as IFF an opportunity to attend the open, public consultation on the Draft Amendment. We commend engagement with diverse voices and hope inclusive practices become the norm for MEITY.
2. The Draft Amendment will not prevent, “de-platforming” : A prominent factor influencing the proposed insertions in the IT Rules, 2021 does not find express mention within the text of the proposals and the accompanying press note. There have been instances wherein MEITY has expressed its concern around “de-platforming” and advocated for proportionate action by social media platforms, backed by a “force of law”, against offensive online content. While we acknowledge the concerns that are arising due to deplatforming, the Draft Amendment does not, “provide a force of law”. The proposals are ultra-vires the safe harbour framework under Section 79 of the IT Act, 2000 because it was never meant to be a law to restore or ensure access to services. Yes, this is a deficiency, but it cannot be cured by subordinate rules, but requires a thoughtful and rights respecting legislation that protects all Indians who use social media services.
3. GAC is a gag: The Draft Amendments propose the appointment of a Grievance Appellate Committee (GAC) as a government body that would hear appeals against the decisions of social media platforms to remove or not remove content. The Draft Amendments state that the GAC will be a government-appointed body but do not state whether this body will grant a right of hearing to content creators or even publish its orders. There are several other concerns with the GAC. Firstly, the executive-constituted committee will make the Central Government (instead of, ideally, an independent judicial or a regulatory body) the arbiter of permissible speech on the internet. It would incentivize social media platforms to suppress any speech that may not be palatable to the government, public officials, or those who can exert political pressure. Secondly, it will empower the government to censor speech on grounds not stated under Section 69A of the IT Act, 2000 or Article 19(2) of the Constitution. Lastly, the creation of GAC itself does not have any legal basis as such adjudicatory bodies can only be constituted by the legislature. Moreover, and in any case, such a body could be constituted through subordinate legislation only if the legislature permitted the executive to do so. The IT Act, 2000 does not contemplate let alone permit the Union Government to appoint an adjudicatory body to decide permissible content.
4. GAC is impractical: The creation of GAC is not just undesirable but also unfeasible because of the large volume of appeals filed against content moderation decisions taken by the intermediaries. In absence of a legal or regulatory framework governing the resolution of disputes, there is likely to be an arbitrary “pick and choose policy” to determine a fraction of the appeals will be made this will lead to the appearance or the existence of bias.
5. Vague and arbitrary phrasing: Rule 3(1)(b) of IT Rules, 2021 requires social media platforms to “inform” their users regarding not posting content that is “ethnically objectionable”, “harmful to child”, “insulting another nation”, “is misleading in nature”, etc. However, the Draft Amendments propose changing Rule 3(1)(b) to state, “the intermediary shall inform the …. user and shall cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,”. The proposed amendment, by inserting the phrase “shall cause”, increases the compliance burden of platforms to ensure the removal of content, listed from (i) to (x) under Rules 3(1)(b), irrespective of a complaint from any user. This is contrary to the decision of the Hon’ble Supreme Court in Shreya Singhal v. Union of India (Para 122) where it was held that intermediaries must takedown content only on the basis of ‘actual knowledge’ in the form of directions from the Union Government, Courts or a public authority under law. Contrary to the decision, the proposed amendment directs intermediaries to proactively become arbiters of permissible speech and suppress speech based on vague grounds or lose their immunity.

Promotion of a faulty model for self-regulation

IFF witnessed a concerning trend during the public consultation on the Draft Amendment for the creation of a single, industry-wide Self Regulatory Body (“SRB”). The Ld. Minister of State, MEITY, who was presiding over this consultation, stated that “the government would be open to such a [self-regulatory] mechanism and would also be amenable to changes in the rules in case they were found to be more effective”. Koo, a micro-blogging platform, voicing its full support for the Draft Amendment, recommended the creation of a “single industry wide SRB working under a Code of Conduct set up by Meity”, as an alternative to the GAC in case of its non-establishment. Furthermore, Koo even volunteered to “anchor and coordinate creation of the SRB and an Indian Code of Conduct”. We strongly oppose the suggestion to create an industry-wide SRB as well as the proposal to create an “Indian Code of Conduct”. Self-regulation would push social media platforms to censor when in doubt especially on themes of politics, society and religion. This will ultimately result in a severe form of self-censorship and cause a vast chilling effect.

Recommendations

Apart from highlighting the illegalities of the proposal, we have also provided recommendations to MEITY as we recognise the need to regulate social media in a rights respecting legislative framework. Our recommendations stem from the belief that the scope of regulation must be restricted to “illegal content” rather than “legal but harmful content” as it enables private entities to become arbiters of permissible speech. Our recommendations to MEITY are:

1. Withdraw IT Rules, 2021 in their entirety.
2. Revive the erstwhile Cyber Regulations Advisory Committee (“CRAC”) under Section 88 of the IT Act, 2000 with membership of civil society, technologists and digital rights experts.
3. Publish a white-paper detailing government’s intent with respect to intermediary liability and online content regulation.

Apart from the above, we also asked MEITY to substantially engage with the recommendations put forth by the Standing Committee on Subordinate Legislation’s report on the Information Technology (Intermediaries Guidelines) Rules, 2011, which too had recommended making the CRAC functional again. These recommendations included:

1. Removing any definitional vagueness to prevent misuse
2. Ensuring that any decision to remove content is taken by an independent authority
3. Providing procedural safeguards when content is removed such as an obligation to provide reasoned order, a right to be heard to the content creator and the right to appeal the decision of the authority
4. Creating a minimum requirement for any forthcoming regulatory framework, so that such provisions provide a basic level of operational transparency

Important Documents

1. Press Note dated June 06, 2022 and Proposed draft amendment to IT Rules 2021 (link)
2. The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (link)
3. IFF’s submission on the proposed draft amendment to IT Rules 2021 (link)
4. IFF's letter to the Standing Committee regarding the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (link)
5. Our deep dive on how the IT Rules 2021 are unconstitutional and undemocratic, and how they will fundamentally change an Indian user's experience on the internet. (link)
6. MeitY’s proposal to amend IT Rules, 2021 dated 6th June, 2022. (link)
7. Archive of MeitY’s website from June 2nd, 2022. (link)
   

This post was drafted by Tejasi Panjiar, Associate Policy Counsel and Krishnesh Bapat, Associate Litigation Counsel, and reviewed by Apar Gupta, Executive Director at IFF.