Amendments to the Information Technology Rules (Guidelines for Intermediaries and Code of Ethics for Digital Media), 2021

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INTRODUCTION

With the rise of social media and over-the-top (“OTT”) platforms, legal regulation to guard against abuse, misinformation and privacy violations has become the need of the hour. Over the years, the problems with social media platforms have been highlighted in Parliament and finally through the shutdown of Prajwala vs Union of India, 1 the Honorable Supreme Court has ordered the central government to develop interim guidelines to eliminate child pornography and transform explicit images from online platforms. Therefore, the Information Technology Rules (Intermediary Guidelines and Digital Media Code of Ethics), 2021 (“Intermediate Rules”)2 were enacted under the Information Technology Act, 2000 (“Law”). The Intermediate Rules provide grievance redress and self-regulatory mechanisms, as well as factors to consider before posting, transmitting or exhibiting digital content. A brief review of intermediate rules can be viewed here. On October 28, 2022, the Ministry of Electronics and Information Technology amended the intermediate rules (“Amendment”) provide enhanced grievance redress mechanisms and enhanced due diligence requirements.

II. MODIFICATION OF THE INTERMEDIATE RULES

Languages ​​for Privacy Policy, User Agreements, etc.

Rules 3(1)(a) and (f) state that the language in which intermediaries must post the rules and regulations, the privacy policy, the user agreement and any updates thereto, on their website and/or their mobile applications, must be English or any other language specified in the Eighth Schedule of the Constitution of India (“Constitution”) according to the user’s preference.

Positive obligation of intermediaries with regard to the disclosure by the user of the “identified criteria”

Previously, Rule 3(1)(b) required intermediaries to notify users not to host, post, upload, modify, publish, transmit, store, update or share any information relating to certain identified criteria that are provided there, through its rules and regulations. , user agreement and privacy policy. However, this compliance has now been modified and made stricter, requiring an intermediary to not merely inform, but to make reasonable efforts through its rules and regulations, user agreement and policy. of confidentiality to prevent users of its computing resource from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating or sharing any information relating to these identified criteria.

Changes to “identified criteria”

As part of the criteria identified in Rule 3(1)(b), sub-clause (ii) previously included material that is defamatory, libelous or inconsistent with applicable law, but these standards have been removed. Rule 3(1)(b)(v) has been amended so that the requirement to prohibit users from using intermediaries to post or share information that misleads or misleads the recipient as to the origin of the message or that promote misinformation or manifestly false or false or misleading information, must persist regardless of whether it is perceived as fact.

Another criterion identified under Rule 3(1)(b) which has now been deleted is former sub-paragraph (x) which included information which is manifestly untrue and untrue and which is written or published in any form whatsoever, with intent to mislead or harass any person, entity or agency for financial gain or to cause injury to any person.

Accessibility and Protection of Constitutional Rights

Subparagraphs (m) and (n) have been added to Rule 3(1). Rule 3(1)(m) provides that an intermediary must take reasonable steps to ensure the accessibility of services to users, as well as reasonable expectations of due diligence, confidentiality and transparency. Rule 3(1)(n) provides that an intermediary must respect all rights granted to citizens under the Constitution, in particular sections 14, 19 and 21.

Grievance resolution time

Rule 3(2)(a)(i) which provides for grievance redress mechanisms through an intermediary, previously required the grievance officer to acknowledge receipt of complaints within 24 (twenty-four) hours and remedy them within 15 (fifteen) days, however, the word ‘eliminated’ has now been replaced with ‘resolved’ and two conditional clauses have been added to this requirement. The first provision states that a complaint of the nature of a request to remove an information or communication link in relation to Rule 3(1)(b), other than that which belongs to another person or over which the user has no right, or which infringes any trademark, patent or copyright, or which violates any law currently in force, must be addressed as quickly as possible and resolved within 72 (sixty -twelve) hours following the report. The second condition states that appropriate safeguards can be developed by intermediaries to prevent misuse by users.

Creation of the Grievance Appeals Committee

The newly inserted Rule 3A provides for appeal to a 3-person Grievance Appeals Committee to be established by the Central Government within 3 (three) months from the entry into force of the amendment. Any person aggrieved by a decision of the Grievance Officer may appeal to the Grievance Appeals Committee within 30 (thirty) days from the date of receipt of the communication from the Grievance Officer. The Grievance Appeals Committee shall deal with such appeals promptly and endeavor to resolve them within 30 (thirty) days from the date of receipt of the appeal. This grievance appeal committee is also authorized to request the assistance of experts. This rule further provides for the adoption of an online dispute resolution mechanism and the uploading of orders to the Grievance Appeals Committee website.

III. CONCLUSION

The amendment further strengthens the information dissemination process and aims to improve the complaints redress mechanism. However, concerns remain that the provisions relating to compliance with the articles of the Constitution could be interpreted broadly by different courts and lead to different views, which could create a disparity in the compliance of different intermediaries. Requiring intermediaries to make reasonable efforts to ensure user compliance could result in heavy compliance costs for them. Furthermore, the addition of the clause for removing information or communication links within 72 (twenty-four) hours is essential to curb the viral spread of content on the Internet. Finally, it can be cumbersome and costly for intermediaries to formulate rules, regulations, privacy policy and user agreement in a multitude of languages ​​in order to comply with the terms of the Intermediary Rules.

The objective of the enactment of the amended Intermediary Rules is to ensure an open, safe, reliable and responsible Internet for all Internet users in India and to create a new sense of responsibility among intermediaries, especially within large technology platforms. The question is whether it will succeed in solving the problems faced by digital users at a time when technology is changing at a rapid speed.

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