Draft Amendments to IT Rules, 2021

In News

• Recently, the Ministry of Electronics and Information Technology has published a fresh draft of amendments to the Information Technology Rules, 2021.

What are the proposed amendments to the IT Rules, 2021?

• Creation of government-appointed appeal committees:
  • It will be able to veto content-moderation decisions taken by social media intermediaries like Facebook, Twitter and YouTube.
• Grievance Appellate Committees:
  • The Central Government shall constitute one or more Grievance Appellate Committees, which shall consist of a Chairperson and such other Members, as the Central Government may appoint.
  • What it essentially means is that in case a user is not satisfied with the content moderation decision taken by a company’s grievance officer, they can appeal that decision before the proposed government-appointed appeals committee.
  • Every order passed by the Grievance Appellate Committee shall be complied with by the concerned intermediary.
  • Currently, the only recourse a user has against companies’ content decisions is to approach the courts.
• Placing additional responsibilities on grievance officers appointed by social media companies:
  • It says that if a user complains about content which is “patently false”, infringes copyright, and threatens the integrity of India, among other things, a grievance officer will have to expeditiously address it within 72 hours.
  • Under current rules, grievance officers have 15 days to act on and dispose of users’ complaints.
• India-based resident grievance officer:
  • Social media companies like Facebook and Twitter are mandated to appoint India-based resident grievance officers as part of their due diligence as ‘intermediaries’ who enjoy legal immunity from third-party content on their platform.

What was the need of these provisions?

• Constitutional rights of Indian citizens: Proposed amendments will ensure that Constitutional rights of Indian citizens are not contravened by any big tech platform by ensuring new accountability standards.
• Enforcement: It will ensure “actual enforcement of requirements in IT Rules, 2021 in letter and spirit.
• Opportunity to explain their actions: De-platforming of users by social media companies without allowing them an opportunity to explain their actions is a recurring complaint that the government has received from users.
• Absence of Regulatory Body: For OTT and social media, there was no regulator like
  • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
• Poor, Offensive and Abusive Content: The shows like Tandav, AIB roast, etc were highly criticised for their biassed and adult content.
  • With the deeper reach of smartphones, children and youth are being misled by such content.
  • Presence of Clauses provisioning Reasonable Restrictions over Fundamental Rights.
• Threat to Traditional Media: Due to less regulation and improving technology, these new social media were threatening and exploiting traditional media.
  • Facebook banned News pages in Australia.
• Piracy and illegal content sharing: The role of social media was criticised during Delhi Riots, Farmer Protests, etc.
  • Further a lot of fake news were doing errands on such platforms due to lack of accountability.
• Double Standards as per Country and Government: In the past, social media has shown differential treatment for Europe and Asian Countries.
  • Further, event based bias was also seen in a few cases.
• Increasing Digital Crimes: Radicalisation, Terrorist recruitment, Digital hacking, Child pornography and other henious crimes, etc are increasing.

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

• Definition of Digital Media: It will cover digitised content that can be transmitted over the internet or computer networks.
  • It also includes intermediaries such as Twitter and Facebook, and publishers of news and current affairs content.
  • It also includes so-called curators of such content.
  • Publishers of news and current affairs content will cover online papers, news portals, news agencies, and news aggregators.
• Not Covered: The act does not include the e-paper of any newspaper because print media comes under the purview of the Press Council of India, anyway, and has to follow established guidelines.
  • It also does not cover news operations that do not qualify as a “systematic business activity” — effectively excluding blogs and non-profit publishers.
• Online News Media’s treatment at par with Traditional Media: The Digital Media will also be brought under the ambit of section 69(A) of the Information Technology Act.
  • Section 69(A) gives takedown powers to the government.
  • It also deprived the intermediaries of their “safe-harbour protections” under Section 79 of the IT Act.
  • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
  • According to the proposed changes, these acts will also apply to online news and current affairs portals under the Code of Ethics.
• Three Tier Check Structure: Part III of the rules imposed three-tier complaints and adjudication structure on publishers.
  • Self-regulation.
  • Industry regulatory body headed by a former judge of the Supreme Court and High Court with additional members from an I&B ministry approved panel.
  • Oversight mechanism that includes an inter ministerial committee with the authority to block access to content.
    • The Inter ministerial Committee can also take suo motu cognisance of an issue, and any grievance flagged by the ministry.

• Content Moderation Officers: Social media companies may need to appoint officers who will be responsible for complying with content moderation orders.
• Originator of Message: New, stricter guidelines make it mandatory for platforms such as WhatsApp to aid in identifying the “originator” of “unlawful” messages.
• Grievance redressal portal: The rules mandate the creation of a grievance redressal portal as the central repository for receiving and processing all grievances.
  • They ask intermediaries to act on certain kinds of violations within 24 hours, and on all concerns of a complainant within 15 days.
• Information Disclosure to Competent Authorities: The rules also say that competent authorities, through an order, may demand pertinent information for the purposes of prevention, detection, investigation, prosecution or punishment of crimes.
  • However, It excludes the intermediary from having to disclose the content of the personal messages.

Issues/ Criticism

·         Not addressing grievances: The IT Rules, 2021 provide for a robust grievance redressal mechanism. However, there have been many instances that grievance officers of intermediaries either do not address the grievances satisfactorily and/or fairly.

• Unconstitutional: It violated Article 19(1) (a) (freedom of speech and expression).
• Over Regulation: This administrative regulation on digital news media would make it virtually impossible for small or medium-sized publishers, such as the petitioner, to function
  • For the IT Act to be used as a content control mechanism, especially through exercise of powers aimed at intermediaries which do not originally publish content, seems to be an overreach of executive power.
• Curb Freedom of Artistic Expressions: The present norms put a curb on the Freedom to Artistic Expressions under Article 19.
• Selective targeting: It has also been alleged that the rules will be more misused than for real regulation.
  • There are instances when the government tried to curb certain Anti- Government Agendas while ignoring populist fake news.
• Rising Intolerance and Populist measure: The uproar over series like Tandav and AIB Roast are just a reflection of lack of tolerance.
  • Most arguments like abusive language, against the cultural ethos are either vague or irrelevant as they often depict day to day life.

Way Ahead

• Independent Authority to moderate the content: The Independent Authority may be appointed in consultation with the Leader of Opposition and Judiciary to ensure a neutral person for regulating the content.
• Judicial Commission to decide the definitions: The definitions should be precisely defined to avoid any controversy in future.

Source: IE