Call for inputs: Proposed Amendments to the Intermediary Guidelines and Digital Media Ethics Code Rules 2021

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Call for inputs: Proposed Amendments to the Intermediary Guidelines and Digital Media Ethics Code Rules 2021

Varun Sen Bahl

@varunsenbahl1

June 8, 2022

Public Policy

374

On 6^th June 2022, the Ministry of Electronics and Information Technology (MEITY) released a set of proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Intermediary Guidelines 2021). The proposed amendments are available here. In this post, we summarise the proposed amendments and call for industry to submit inputs on them.

Background

The Intermediary Guidelines 2021 were notified to update the existing “due diligence” requirements applicable to intermediaries seeking to qualify for the “safe harbour” provided under Section 79 of the Information Technology Act (IT Act). It replaced an earlier set of rules that had been in place since 2011.

The 2021 set of rules are divided into two parts. The first contains general requirements applicable to intermediaries as well as certain additional specific requirements applicable to “significant social media intermediaries”. The second seeks to impose requirements on publishers of online content, largely to introduce new grievance redressal mechanisms.

NASSCOM has consistently engaged with MEITY and other stakeholders on the Intermediary Guidelines 2021. We had submitted comments to MEITY in 2020 on an early draft of these new rules that had been published in 2019, which we summarise and make available here. When the new Intermediary Guidelines 2021 first came out, we published a policy brief on them, which is available here. In November 2021, when MEITY also released a set of FAQs on the Intermediary Guidelines 2021, we discussed them here. We will now be looking to engage on this latest set of proposed amendments to the Intermediary Guidelines 2021.

The 2022 Proposed Amendments

MEITY states that these amendments have been proposed to “provide additional avenues for grievance redressal apart from Courts and also ensure that the constitutional rights of Indian citizens are not contravened by any Big-Tech Platform by ensuring new accountability standards....”.

We also see an emphasis on the “removal of unlawful and harmful information violative of their own terms and conditions in the case of significant social media platforms while ensuring that users are given reasonable opportunity to respond.” More generally, we also find mention of the common refrain of wanting to ensure that the Internet is “open, safe & trusted, and accountable”. The following amendments have been proposed:

Rule 3(1) on publication of terms and conditions by the intermediary. The proposed amendments seek to add to the current requirement on intermediaries to publish terms and conditions on their website containing certain content-related restrictions by also expecting the intermediary to “ensure compliance” with such terms and conditions. Specifically, the amendment proposed to Rule 3(1) essentially expects intermediaries to not only “inform the rules and regulations, privacy policy or user agreement of the intermediary to the user” but also to “cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information” under the proposed amendment.
Insertion of new Rule 3(1)(m) and Rule 3(1)(n). Rule 3(1)(m) focuses upon mandating intermediaries to take all responsibility to ensure accessibility of services to its users with a reasonable expectation of transparency, privacy, and due diligence. Rule 3(1)(n) is a mandate for the intermediary to respect the constitutional rights of all citizens of India.
Grievance redressal mechanism. The proposed amendments now expected intermediaries to address complaints concerning content that falls within the categories set out in Rule 3(1)(b) within 72 hours of receiving the complaint. All other grievances will follow the 15-day window for redressal. The proposed amendment also does contain a proviso whereby intermediaries to develop mechanisms to avoid misuse of grievance redressal mechanisms by users.
Establishment of Grievance Appellate Committee. The proposed amendments also envisage, vide changes proposed to Rule 3(3), the constitution of a new grievance appellate committee by the Central Government and will provide users with an opportunity to appeal against intermediary orders. The amendment envisage that any person aggrieved by the ruling of a grievance officer appointed by the intermediary or publisher (as per the 2021 rules) can appeal to this committee within 30 days of receiving the ruling. The committee will endeavour to dispose of appeals in a timely manner. This provision seeks to provide an appellate mechanism to users which were absent in the 2021 rules. Intermediaries are to be bound by the order of the committee. However, it is clarified (in a footnote) that this does not impact the right of the user to approach the judiciary for redressal.

MEITY has sought suggestions from the public on the proposed amendments. The last date for providing feedback to MEITY is 30 days from the date of notification, in other words, by 5^th July 2022.

We shall be preparing a response on these draft amendments. In this regard, we request you to kindly share your detailed inputs with suitable justifications to us by or before June 17^th, 2022. Please share your inputs to varun@nasscom.in and apurva@nasscom.in.

Namratha Keshava, currently a Public Policy Intern at NASSCOM, contributed to this post.

intermediary guidelines intermediary liability social media intermediary #Policy

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Varun Sen Bahl

Manager - Public Policy

Reach out to me for all things about data regulation, cybersecurity policy, and internet governance.