Amendments to IT Rules, 2021

In News: The Ministry of Electronics and IT (MeitY) has notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021).

About:

• India in 2021, replaced its decade old regulations on SMIs with the IT Rules, 2021
• Aim:

• Placing obligations on social media intermediaries (SMIs) to ensure an open, safe and trusted internet.
• Empowering users of social media platforms through a robust grievance redressal mechanism that can effectively and efficiently address their concerns.

• Given the multitudinous nature of the problem of SMIs— the centrality of SMIs in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance — it is important for governments to update their regulatory framework to face emergent challenges.
• Objectives of the amendment:

• First, there was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms
• Second, to strengthen the grievance redressal framework in the Rules
• Third, that compliance with these should not impact early stage Indian start-ups.

• Categories of amendment:

• placing additional obligations on the SMIs to ensure better protection of user interests
• appellate mechanism for grievance redressal

Additional obligations on the SMIs:

• To ensure that its users are in compliance with the relevant rules of the platform.
• The “rules and regulations, privacy policy and user agreement” are available in all languages listed in the eighth schedule of the Constitution.
• To “make reasonable” efforts to prevent prohibited content being hosted on its platform and to police and moderate content.
• To “respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21”.
• To remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises within 72 hours to contain the spread of the content.
• To “take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency” and to strengthen inclusion in the SMI ecosystem such as allowing for participation by persons with disabilities and diverse linguistic backgrounds.

Concerns:

• SMIs are unclear of the extent of measures they are now expected to undertake and users are apprehensive that the increased power of the SMIs would allow them to trample on freedom of speech and expression.
• The wide interpretation to which this obligation is open to by different courts, could translate to disparate duties on the SMIs. Frequent alterations to design and practices of the platform, that may result from a case-to-case based application of this obligation, could result in heavy compliance costs for them.

• First, as evidenced by the transparency reports of SMIs, such as Facebook and Twitter, there is no common understanding of what is meant by resolution of the complaint.

• For example, Facebook records only mention the number of reports where “appropriate tools” have been provided. These “appropriate tools” could just mean the automated replies pointing out the tools available on the platform that have been sent to the complainants.
• Twitter records outline the number of URLs against which action has been taken after the receipt of a complaint.

• The number of user complaints continue to be quite low when compared to the content against which the platform acts proactively or is obligated to remove due to governmental or court orders.
• This may be because users are either not aware of this facility or find it futile to approach the platform for complaint resolutions or in case where action has been taken, there is no way to assess whether the complainant has been satisfied with the resolution of the complaint.
• Moreover, the extant framework does not provide for any recourse if the complainant is dissatisfied with the grievance officer’s order.
• Possibly, the only course available to the complainant is to challenge the order under the writ jurisdiction of the High Courts or Supreme Court. This is not efficacious given that it can be a resource and time intensive process.
• Prior to the IT Rules, 2021, platforms followed their own mechanisms and timelines for resolving user complaints.

Grievance Appellate Committees (GAC):

• The IT Rules uniformed this by mandating that all social media platforms should have a grievance officer who would acknowledge the receipt of a complaint within 24 hours and dispose it within 15 days.
• The committee is styled as a three-member council out of which one member will be a government officer (holding the post ex officio) while the other two members will be independent representatives.
• Users can file a complaint against the order of the grievance officer within 30 days.
• Importantly, the GAC is required to adopt an online dispute resolution mechanism which will make it more accessible to the users.
• Interestingly, it is unclear whether the user have to approach the grievance appellate committee before approaching the court as the institution of the GAC would not bar the user from approaching the court directly against the order of the grievance officer.
• While this makes the in-house grievance redressal more accountable and appellate mechanism more accessible to users, appointments being made by the central government could lead to apprehensions of bias in content moderation.
• Further, the IT Rules, 2021 do not provide any explicit power to the GAC to enforce its orders.
• Lastly, if users can approach both the courts and the GAC parallelly, it could lead to conflicting decisions often undermining the impartiality and merit of one institution or the other.

Source:   The Hindu