tl;dr
On June 2nd, 2022, the Ministry of Electronics and Information Technology (‘MeitY’) proposed amendments to IT Rules, 2021 to ‘address the gaps identified’ and invited comments on the proposal. Instead of addressing the gaps, the proposals perpetuated the already existing illegalities in the IT Rules, and sought to impose impractical obligations on social media platforms and subjected them to direct government oversight. As soon as the proposed amendments were published, we summarised our concerns on Twitter. Later in the day, it was reported that MeitY had decided to withdraw the proposal and that the proposal may be released again next week.
Why should you care?
As we have written before, the IT Rules, 2021 have far-reaching consequences on online privacy and freedom of speech and expression. They give the government considerable control over social media platforms, digital news publications, and on-video entertainment services, making these services seriously prone to censorship. Considering these concerns, the proposal to amend presented an opportunity to MeitY to ‘address the gaps’ with IT Rules, 2021. But instead of addressing the gaps, the proposal sought to make such amendments that extended the already existing illegalities. When concerns regarding the proposals were highlighted, MeitY withdrew them without any comments.
As a result of these events, we reiterate that MeitY should withdraw IT Rules, 2021 in their entirety which restrict the experience of Indian users on the internet.
Proposed amendments and our concerns
On June 2nd, 2022, MeitY’s proposed amendments to IT Rules, 2021 and invited comments from the public. Simply put, the proposals sought to make IT Rules, 2021, more restrictive of individual liberties than it already is, without addressing existing concerns flagged by academia, civil society, judiciary and the industry.
The proposed amendment sought to bring about the following changes:
- Grievance Appellate Committee: By introducing Rule 3(3), MeitY sought to establish a Committee consisting of government officials for adjudication of any appeals against the decision of social media platforms to remove or not remove content. Worryingly, this would have made the government the arbiter of permissible speech on the internet and incentivised social media platforms to suppress any speech that may not be palatable to the government. Moreover, this proposal would have empowered the government to censor speech on grounds not stated under Section 69A of the Information Technology Act, 2000 or Article 19(2) of the Constitution. Separately, the proposal also would have been impossible to implement. Compliance reports published by intermediaries suggest that platforms such as Facebook remove/takedown more than 3 Crore pieces of content on a monthly basis. Even if a quarter of these decisions are appealed, it would have been impossible for the Committee to adjudicate and apply its mind to each of the disputes.
- Remove content not permitted under Rule 3(1)(b): Rule 3(1)(b) of IT Rules, 2021 asks social media platforms to inform their users that they should not post content which is ‘ethnically objectionable’, ‘harmful to child’, ‘insulting another nation’ or is ‘misleading in nature’, etc. But IT Rules, 2021 do not direct platforms to remove such content without a complaint from any user. MeitY’s proposal sought to change this by mandating to remove such content irrespective of any complaint. This is worrying because the grounds mentioned in Rule 3(1)(b) are themselves vague, impossible to implement consistently and prone to misuse, and social media platforms should not be made arbiters of whether a piece of content is permissible under this rule.
- Resolve grievances in 24 hours: MeitY proposed introduction of a proviso to Rule 3(2)(a)(i). As a result of the proviso, MeitY intended to impose an obligation on all platforms to address any grievances any user may have within 72 hours. Such a short-time line would have created the possibility of disposal of grievances without application of mind and led to arbitrary restriction on speech.
Instead of proposing new provisions and imposing impractical obligations on social media platforms and subjecting them to direct government oversight, MeitY ought to have addressed existing concerns with IT Rules, 2021. Most notably, the Bombay and the Madras High Courts have stayed Part III of IT Rules, 2021 stating that it prima facie violated the right to speech and that it was beyond the rule making power of the government. Yet, the proposals did not even address Part III of IT Rules, 2021. Ministry of Information and Broadcasting which governs Part III has not released any fresh proposal for consultation.,
Withdrawal of the Proposal
MeitY proposed amendments to IT Rules, 2021 on the morning of June 2nd, 2022 and invited comments on the proposals. Astonishingly, later on the same day, MeitY withdrew the proposal without any comments. The link on which their proposal was available, now simply states that the ‘page could not be found’. Even more astonishingly, this was not the first time MeitY issued a document only to withdraw it later. Only recently on May 30th, 2022, UIDAI on MeitY letter-head issued an advisory asking the public to not share photocopies of their Aadhaar card. On the same day, MeitY withdrew the advisory, purportedly because it could be misinterpreted. Earlier, in February 2022, MeitY published the Draft India Data Accessibility & Use Policy, 2022 to which substantial changes were made during the consultation period without any public acknowledgement.
Important Documents
- 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)
- MeitY’s proposal to amend IT Rules, 2021 dated June 2nd, 2022. (link)Archive of MeitY’s website from June 2nd, 2022. (link)