A public brief on the IT Amendment Rules, 2022 a.k.a ‘how the government is trying to moderate online speech’

Rules 

Comments/Suggestions

Reasoning and Support

Rule 2(1)(ka)

A GAC will act as an oversight mechanism against decisions of GRO, who were required to be appointed by all social media platforms under Rule 2(2) of the IT Rules, 2021. In the absence of rules which ensure the independence of the GAC, we strongly suggest that such a body not be constituted (Broad reasons and justifications are provided above - See Section 4.3).

The constitutional validity of the IT Rules, 2021 was challenged before several High Courts. The Bombay and Madras High Courts stayed Rules 9(1) and 9(3) under Part III that sought to establish an oversight mechanism over digital news publishers and OTT platforms, warning that it may ‘rob the media of its independence’. Instead of addressing these existing concerns, MEITY has sought to establish an oversight mechanism over social media intermediaries as well. Such a move will seriously threaten the free expression of millions of Indians and in effect have similar implications as the IT Rules, 2021, which have been stayed by constitutional courts. 

Rule 3(1)(a)

The amendment to this clause extends the compliance obligation of the intermediary by not only asking it to prominently publish the rules, regulations, privacy policy, etc., but also ensuring “compliance of the same”. These amendments seek to overturn years of jurisprudence surrounding intermediary protections as well as the Supreme Court judgement in Shreya Singhal vs Union of India. This is not permissible under the constitutional scheme of India. In the absence of clarity over how the intermediaries can ensure compliance, this amendment must be withdrawn.

The phrasing of the amendment is vague and lacks clarity over how such compliance is to be ensured by the intermediaries. Social media platforms may risk losing their intermediary protection under the IT Act if a Court determines that they failed to comply with the IT Rules, 2021. Since millions of pieces of content are generated on multiple social media platforms, in a variety of contextually different ways every day, it makes it almost impossible for intermediaries to exercise complete control over what users choose to say or do on their platforms. Thus, intermediary protections are necessary as they restrict content removal by social media platforms as a response to government orders or court directions for removal of content. This model is internationally recognised and was even set out by the Supreme Court in the landmark judgement of Shreya Singhal vs Union of India.

Rule 3(1)(b)

Amendment to Rule 3(1)(b) requires intermediaries to “make reasonable efforts to cause the” users not to post certain kinds of content. While this is an improvement from the phrase “shall cause” as included in the Proposed Amendment, 2022, it is an unwelcome change compared to the IT Rules, 2021. The latter required intermediaries to only “inform” their users about the kind of content they could not host, display, publish, etc. The amended clause must be withdrawn.

The amended phrase leaves scope for proactive monitoring and scanning of all user generated content. It could also disproportionately affect politically inconvenient or controversial speech, and potentially lead to arbitrary censorship. It may also enables private entities to become arbiters of permissible speech which is in violation of the directions of the Hon’ble Supreme Court in Shreya Singhal vs Union of India where the Court held that intermediaries cannot decide permissibility of any content without an order of a court or an order by the Government. Thus, this amendment must be withdrawn.

Rule 3(1)(b) (i) to (ix)

Amendments in sub-clauses (i) to (ix) have ambiguous phrasing which will lead to arbitrariness.   The inclusion of the phrase “knowingly and intentionally communicates any misinformation or information” is problematic because neither has misinformation been defined, nor has criteria for determining intent been specified. Therefore, vague terms and phrases must be withdrawn or adequately defined.

Inclusion of vague, subjective and undefined terms in Rule 3(1)(b), such as “misinformation”, can make consistent application extremely challenging 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.

Rule 3(1)(m) 

While we appreciate that the amendment requires platforms to take reasonable measures to ensure accessibility as well as   privacy and due process, the term “accessibility'' is vague and is not defined.

The term “accessibility” could also mean “visual accessibility” or even “access to services”. Hence, there is not much clarity around the term itself. It may be used as a basis to question decisions of social media intermediaries to suspend or terminate accounts in response to violation of the former’s rules.

Rule 3(1)(n)

We appreciate that the amendment requires platforms to respect the constitutional rights of Indians. However, the clause does not appear to be practically or judicially enforceable, and thus must be rephrased given that constitutional duties of state instrumentalities cannot be extended to private entities.

As a result of the phrasing of this amendment, there will  inevitably be a lack of clarity with respect to its enforceability. The vagueness of the amendments doesn’t clarify whether fundamental rights can now be judicially enforced against private platforms. Further, there is little legal basis in statute, or justification provided rendering this insertion suspect. 

Rule 3(2)(a)(i)

Rule 3(2)(a)(i) requires resolution of requests for content removal within 72 hours. This may potentially lead to arbitrary censorship by intermediaries and suppression of free speech, in an attempt to avoid the legal consequences of the IT Rules, 2021. Such a short timeline will create the possibility of disposal of grievances without application of mind and may lead to arbitrary restriction on speech.

The obligation to address any user generated complaint within 72 hours is not only difficult to comply with but will inevitably lead to incorrect decision making, and as a result, arbitrary censorship of speech. Concerns around the competence of intermediaries to  resolve complaints also arise, given that million pieces of content are generated everyday in contextually different ways. An empirical study conducted by The Centre for Internet and Society points out that intermediaries tend to over-comply with such takedown requests to limit their liability and this has a chilling effect on free speech and expression of all users.

Rule 3(A)

IT Amendment Rules, 2022, without a legislative basis, seeks to subject content on social media platforms to the direct scrutiny of the Government by permitting users to appeal decisions of the platforms to the GAC. But in any scenario, if the GAC is constituted, the IT Rules, 2021 must provide the complainants/ content creators a right of hearing before the GAC  and state the procedure that the GAC will be obliged to follow. It must also state the minimum qualifications and functions of the Committee members.

The creation of the GAC, through the amendments, is without legislative backing since the amendments will be issued by the Ministry to its own Rules, and not by the Parliament to a statutory legislation. Furthermore, the amendment doesn’t even provide a right of hearing before the Committee to complainants / content creators or state the procedure the Committee will follow. It also fails to state the minimum qualifications to be on the Committee.

Rule 3A(2)

Rule 3A(2) states that one of the three GAC members will be an ex-officio member appointed by the Union Government. Given the wide-ranging impact the GAC may have on online free speech, it must not consist of a bureaucrat, if it is in fact appointed. 

By allowing an ex-officio member to be on the GAC, MeitY has essentially put a bureaucrat on the Committee. Such a provision is concerning as this would make the bureaucracy (rather than an independent judicial or a regulatory body) the arbiter of permissible speech on the internet. 

Rule 3A(4)

Rule 3A(4) requires the GAC to endeavour to resolve user appeals within 30 calendar days from the date of receipt of the appeal. Given the large number of appeals that would fall before the GAC, it is unlikely that these bodies will be able to adequately deal with them. Thus, the creation of GAC is not feasible.

A popular Indian social media platform reported that it received about 4.685 million user complaints in September 2022. Even if 1% of these user complaints reach the GAC, it will have to deal with at least tens of thousands of appeals per month, which seems highly challenging. Further, such a volume of determination will require a full fledged adjudicatory apparatus and human resources staffing with persons having judicial training.