Dear MEITY, withdraw the new IT Rules!

We write to MEITY urging them to withdraw the Guidelines For Intermediaries And Digital Media Ethics Code Rules, 2021 while objectively noting the marginal positives within them are eclipsed by the larger illegalities that threaten digital rights.

Tl;dr

We wrote to the Ministry of Electronics and Information Technology regarding the recently notified intermediary guidelines. In our letter, we commend certain aspects of the Rules however these are marginal. On balance, even they suffer from a problematic process and questionable legality that can bring real accountability to social media platforms for Indians. Further, this is a clear case of the bad outweighing the good, as several provisions of the bill are undemocratic and unconstitutional. In light of this, we called for the Rules to be withdrawn and for wide-ranging consultations to be held.

IT Rules: Are they any good?

The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 were notified on February 25th, 2021. The Rules lay down an anti-democratic and unconstitutional framework for the regulation of online content. These concerns have been noted in our initial analysis. Such concerns demand a greater scrutiny of the Rules than has been the case, especially since no stakeholders consultations have been conducted between when they were first proposed to when dramatic changes were made and then they were notified.

At the same time, our analysis remains objective and we do note positive provisions such as, for example, mandating the provision of a counter-notice under rule 4 (8) (a) explaining the removal or disabling access to information or data. It will provide notices to users before their accounts are suspended or information that they post is removed. Such a move deepens the rights of users, and is to be maintained.

Rules 4(d) and 18(3) specify the need for periodic compliance reports to be furnished every month by significant social media intermediaries and publishers of news and current affairs content or online curated content respectively. These provisions ensure mechanisms for making large technology firms accountable and accessible.

However, to achieve real accountability the relevant definitions require clear statutory definitions. The existence of such a vague and overbroad law will have a chilling effect on the freedom of speech and expression, and thus would run counter to any attempts to strengthen the digital rights of citizens. In this light, it is disappointing that such welcome provisions have not been placed within a broader framework of progressive regulation.

Still, making furnishing these notices to users and publishing periodic compliance reports the law is a good thing.  Greater transparency and accountability helps build trust. This is a principle that should apply to technology platforms as well as to public authorities. But does it? We find that the prescribed paradigm is one of punitive enforcement of compliance without the necessary statutory protections for intermediaries under regulatory ‘safe-harbours’. Thus, even the positive provisions end up being only marginally beneficial, while the remaining provisions are significantly unwelcome.

The IT Rules: The Bad Bits

Now, even the good parts of the IT Rule come with significant caveats, and may not even be implemented effectively. Unfortunately, the bad parts may be significantly worse.  We have  extensively analysed various concerns that arise with respect to the IT Rules: how the Rules are anti-democratic and unconstitutional, what self-regulation (read self-censorship) in the OTT sector may look like under the Rules, and our asks of MEITY and MIB with respect to the Rules, and so we know the significant harms that are likely to arise as a consequence of the Rules.

For example, part II of the Rules has serious implications on the freedom of speech and expression and the right to privacy of users of the internet:

1. Rule 3(2) requires social media intermediaries to establish a grievance redressal mechanism by which users may complain against any content and a grievance officer has to dispose of such complaints within 15 days. An empirical study conducted by the Centre for Internet 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.
2. Rule 4(2) requires significant social media intermediaries which provide messaging services (such as Whatsapp) to enable identification of the “first originator” of a message. To implement this rule, entities will have to “fingerprint” each message and this may defeat end-to-end encryption. As a consequence, privacy of every user will be compromised to investigate crimes committed by a miniscule-minority.
3. Rule 4(4) requires significant social media intermediaries to develop automated tools to censor content. While the efficacy of such tools is itself doubtful, intermediaries will collect large amounts of data of users to develop these tools in violation of the Right to Privacy of users.

Part III of the Rules will have grave consequences for the freedom of speech and expression of Digital News Media and OTT Platforms, and the right of citizens to have access to information:

1. The Rules establish a Code of Ethics which is enforced by an Inter-Departmental Committee which consists only of officers of the Government. The Inter-Departmental Committee may recommend the Ministry of Information and Broadcasting to block, delete or modify content published by Digital News Media and OTT platforms. Thus, the Central Government is now the sole arbiter of permissible speech. This affects the publisher’s Fundamental Right to Expression and the citizen’s right to access differing points of view because publishers will be compelled to only produce content which is palatable to the Central Government
2. Notably, Rule 14(1)(b) r/w Rule 14(1)(6) permits the Ministry of Information and Broadcasting to refer complaints to an Inter-Departmental Committee and also decide upon those complaints after taking into consideration the recommendations of the Inter-Departmental Committee. This is arbitrary as the Ministry of Information and Broadcasting becomes a ‘judge in its own cause’, and has a chilling effect on speech of the publishers.
3. The Code of Ethics mandates OTT Platforms to “take into consideration India’s multi-racial and multi-religious context” and exercise “due caution” when portraying any racial or religious group. If they do not exercise “due caution” their content may be blocked by the Inter-Departmental Committee. This obligation on OTT Platforms is vague and has a “chilling effect” because vague laws by their very nature, are overbroad and cover within their ambit both unlawful and legitimate speech.

Alternative regulatory visions

Firstly, the proper legislative mandate for the IT Act is to focus on online interactions by information conduits that work with user generated content. Hence, the Rules must also be examined in the context of other regulatory paradigms for intermediary liability that integrate digital rights.

International bodies and policy experts have called for the adoption of the ‘Manilla Principles for Intermediary Liability’ to protect online freedom of expression and innovation around the world. These principles are:

1. Principle 1: Intermediaries should be shielded by law from liability for third party content
2. Principle 2: Content must not be required to be restricted without an order by a judicial authority
3. Principle 3: Requests for restrictions of content must be clear, be unambiguous, and follow due process
4. Principle 4: Laws and content restriction orders and practices must comply with the tests of necessity and proportionality
5. Principle 5: Laws and content restriction policies and practices must respect due process
6. Principle 6: Transparency and accountability must be built into laws and content restriction policies and practices

The Manilla Principles attempt to provide for an intermediary liability regime that respects human rights, and so it is disappointing that, apart from arguably principle 2, the Rules do not incorporate the principles in its provisions, especially with respect to compliance with proportionality tests. Such disappointment is greater in light of the fact that the Intermediary Guidelines (Amendment) Rules, 2018, had also been criticised for “large unalignment” with the Principles, and so the Rules had represented a chance to right these earlier mistakes.

Another regulatory framework that has not been fully engaged with is the ‘Santa Clara Principles’,  which state that:

1. Principle 1: Companies should publish the numbers of posts removed and accounts permanently or temporarily suspended due to violations of their content guidelines.
2. Principle 2: Companies should provide notice to each user whose content is taken down or account is suspended about the reason for the removal or suspension.
3. Principle 3: Companies should provide a meaningful opportunity for timely appeal of any content removal or account suspension.

We commend the incorporation of principles 1 and 2, through the provision of the aforementioned counter-notices under Rule 4(8)(a) and the requirement for intermediaries to publish periodic compliance reports under Rules 4(d) and 18(3) respectively. However, principle 3 has not been incorporated, as the grievance redressal mechanism specified by the Rules involves contracted timelines for responding and may lead to self-censorship.

What should be done

While we understand the need for robust regulations and acknowledge the existence of certain progressive provisions, on the whole, the Rules are undemocratic, unconstitutional, and regressive. This is not to say social media is perfect – on the contrary it is broken. It requires large scale reforms that need to be conducted with transparency towards establishing a statutory framework that safeguards every day, ordinary Indians who use social media with increased frequency in every aspect of their lives.

We believe for this to happen the Rules must be withdrawn, and energy should be focussed towards extensive consultations that can lead to a statutory basis for instilling regulation that focuses on transparency and accountability from social media companies. The Rules today run the risk of becoming ‘shotgun legislation’: quick, sudden, and without precision towards addressing an issue with a targeted intervention, something which can only have a disproportionately stifling effect on the digital rights of Indian citizens.

Important Documents

1. Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (link).
2. Deep dive : How the intermediaries rules are anti-democratic and unconstitutional (link)
3. IFF's Letter to MEITY 'Regarding certain aspects of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021)' (link)