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