Baba’s Explainer – The amendments to the IT Rules, 2021

Key changes effected in the rules are as under:

• Currently, intermediaries are only required to inform users about not uploading certain categories of harmful/unlawful content. These amendments impose a legal obligation on intermediaries to take reasonable efforts to prevent users from uploading such content.
• For effective communication of the rules and regulations of the intermediary, it is important that the communication is done in regional Indian languages as well.
• The grounds in rules have been rationalized by removing the words ‘defamatory’ and ‘libellous’. Whether any content is defamatory or libellous will be determined through judicial review.
• Some of the content categories (that can be moderated) have been rephrased to deal particularly with misinformation, and content that could incite violence between different religious/caste groups.
• The amendment requires intermediaries to respect the rights guaranteed to users under the Constitution including in the articles 14, 19 and 21, including a reasonable expectation of due diligence, privacy and transparency.
• Grievance Appellate Committee(s) will be established to allow users to appeal against the inaction of, or decisions taken by intermediaries on user complaints. However, users will always have the right to approach courts for any remedy.

• The cornerstone of empowering users of social media platforms is to design a robust grievance redressal mechanism that can effectively and efficiently address their concerns.
• Prior to the IT Rules, 2021, platforms followed their own mechanisms and timelines for resolving user complaints.
• 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.
• However, the performance of the current grievance redressal mechanism has been sub-optimal.
• 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.
  • As opposed to this format, Twitter records outline the number of URLs against which action has been taken after the receipt of a complaint.
• Furthermore, transparency reports show that 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 resolution.
  • It might also be because, even in cases where action has been taken on the content, there is no way to assess whether the complainant has been satisfied with the resolution of the complaint.
• Moreover, the present 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.
• To remedy this, the government has instituted Grievance Appellate Committees (GAC).
• 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.

• The new provision regarding legal obligation to ensure compliance with rules will ensure that the intermediary’s obligation is not a mere formality. This is because SMIs are now required to “make reasonable” efforts to prevent prohibited content being hosted on its platform by the users.
• To a large extent, this enhances the responsibility and the power of SMIs to police and moderate content on their platforms.
• Given the importance of SMIs in public discourse and the implications of their actions on the fundamental rights of citizens, the horizontal application of fundamental rights is laudable.
• SMIs are now obligated to remove information or a communication link in relation to the six prohibited categories of content as and when a complaint arises. They have to remove such information within 72 hours of the complaint being made. Given the virality with which content spreads, this is an important step to contain the spread of the content.
• Ensuring “accessibility” may obligate SMIs to strengthen inclusion in the SMI ecosystem such as allowing for participation by persons with disabilities and diverse linguistic backgrounds
• The in-house grievance redressal of SMIs will be now more accountable and appellate mechanism more accessible to user

• The legal obligation regarding compliance of rules provision been met with skepticism by both the platforms and the users given the subjective nature of speech and the magnitude of the information hosted by these platforms.
• While the SMIs are unclear of the extent of measures they are now expected to undertake, users are apprehensive that the increased power of the SMIs would allow them to trample on freedom of speech and expression.
• New rules could result in heavy compliance costs for them.
• Appointments being made by the central government in Grievance Appellate Committees (GAC) could lead to apprehensions of bias in content moderation.
• 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.