On October 28, 2022, the Ministry of Electronics and Information Technology (“MeitY”) notified the Amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules, 2021”). The notified rules, i.e. the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“IT Amendment Rules, 2022”) have introduced changes in Part I and II of the IT Rules, 2021. As a result of these amendments, the compliance burden on intermediaries, and as an extension the risk to their safe harbour protections, has increased. Further, MeitY has introduced an additional layer of censorship, wherein government-appointed committees will have a say in what content stays up on the internet, and what doesn’t. We are releasing our Public Brief on the IT Amendment Rules, 2022 in public interest as these rules affect the democratic and constitutional rights of each and every internet user.
Why should you care?
Earlier things were bad. In the name of making social media intermediaries accountable to the users, the IT Rules, 2021 made private platforms the arbiters of permissible speech. The potential consequence of non-compliance with the Rules for social media intermediaries (such as criminal prosecution of local officers) may lead to an increased possibility of censorship and reduced user privacy. But now things are worse. In the name of providing users additional avenues for grievance redressal apart from Courts, the IT Amendment Rules, 2022 provides for the establishment of government-appointed committees which will adjudicate on user appeals against the content moderation decisions of intermediaries. Thus, now the executive-appointed officials/members will become arbiters of permissible speech on the internet. All of this is happening without introducing any actual measure to improve transparency and accountability towards users. Instead, as a result of increased regulation, the IT Rules, 2021 has caused and continues to cause injury to the constitutional rights of freedom of speech and expression of users.
Key concerns with IT Amendment Rules, 2022
The IT Rules, 2021 have been contested and criticised by various communities since its inception, primarily for introducing unreasonable restrictions on online free speech and user rights. However, the IT Amendment Rules, 2022 further deepen injuries to the digital rights of every Indian social media user.
This brief aims to provide an in-depth analysis of the various changes brought by the IT Amendment Rules, 2022. Before expanding on a detailed analysis, we list below four main concerns with it:
- A government appointed censorship body: The creation of Grievance Appellate Committee(s), i.e., an executive-constituted committee, will make the Union Government (instead of, ideally, an independent judicial or a regulatory body) the arbiter of permissible speech on the internet. It may also incentivise social media platforms and intermediaries to suppress any speech unpalatable to the government.
- Legislative uncertainty: The IT Amendment Rules, 2022 empower the government to censor speech on grounds not stated under Section 69A of the Information Technology (“IT”) Act, 2000 or Article 19(2) of the Constitution. Further, the GAC itself does not have any legal basis, as it has neither been constituted by the legislature nor has the legislature permitted the executive to constitute the GAC through a subordinate legislation.
- Lack of operational transparency: The absence of details on the functioning of the GAC(s) and its methods of choosing appeals for review raises doubts regarding its independence as well as the government’s ability to influence content moderation decisions in a non-transparent manner.
- Definitional vagueness: Several grounds mentioned in Rule 3(1)(b), such as “misinformation”, remain undefined and thus are vague, impossible to implement consistently and prone to misuse. This may cause social media platforms to become pro-active arbiters of permissible speech which is already resulting in issues given existing lack of natural justice, transparency and accountability as noted by MeitY. It may also potentially lead to arbitrary censorship.
Broad concerns with IT Rules, 2021
The IT Rules, 2021, whose legality is contentious, undermines the fundamental right to freedom of speech and expression and privacy for millions of internet users in India. 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. There are multiple court orders that record the legal deficiencies and constitutional injuries caused by the IT Rules, 2021. Here, IFF’s work includes strategic litigation where it has provided legal representation to LiveLaw Media Pvt. Ltd. before the Kerala High Court which by order dated March 10, 2021 has directed the Union Government to not take coercive action against LiveLaw Media Pvt. Ltd. under Part III of the IT Rules, 2021. IFF is 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”.
Hence, on the basis of the clear and sufficient existing evidence, it is clear that the IT Rules, 2021 cause injury to the constitutional and democratic rights of Indian internet users. They are contrary to the mandate of the Supreme Court in Shreya Singhal v. Union of India (2015, 5 SCC 1) and deserve a complete recall.
In addition to highlighting the concerns with the amendments, we have also provided recommendations to MeitY as we recognise the need to regulate social media in a rights respecting legislative framework. Our primary and broad recommendation remains withdrawal of the IT Rules, 2021 in their entirety. Further, we urge MeitY to publish a white-paper detailing the government's intent with respect to intermediary liability and online content regulation.
For a summary of our clause-by-clause analysis of the IT Amendment Rules, 2022, refer to the table below.
- IFF's public brief on the IT Amendment Rules, 2022 (link)
- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022. (link)
- The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (link)
- MeitY’s proposal to amend IT Rules, 2021 dated 6th June, 2022. (link)
- IFF’s submission on the proposed draft amendment to IT Rules 2021 (link)
- IFF's letter to the Standing Committee regarding the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (link)
- 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)