Censorship fears over India’s IT Rules as wrangle continues with MeitY – MediaNama.com

No free pass for intermediaries, appeared to be the general sentiment pervading the first public consultation on the proposed amendments to the IT Rules, 2021 held yesterday.The Ministry of Electronics and Information Technology (MeitY) took particular note of unnamed intermediaries that have not fully complied with the IT Rules, 2021, spotlighting their refusal to take action on harmful content on their platforms citing safe harbour obligations.

Why it matters: Stakeholders aired their initial questions and concerns with the Rules with the Ministry yesterday. MeitYs responses shed light on its current outlook on all intermediaries operating in Indias Information and Technology sector, i.e., they must comply with Indian platform regulation laws.

Released on June 6th, the proposed amendments to the IT Rules, 2021, aim to curb the harms of Big Tech and improve user grievance redressal. In the same breath, they have raised concerns for both users of the Internet and stakeholders across Indias Information and Technology sector. As MediaNama has previously reported, who they apply to remains unclear in the draft. The proposed changes may also spur censorship by intermediariesincluding social media companies. A newly formed redressal Committee may result in overt government influence over speech online.

In yesterdays meeting, the Ministry repeatedly referred to intermediaries non-compliance with the IT Rulesleading to increasing complaints from users on faulty grievance redressal mechanisms. Describing the Rules as part advocacy and part rule-making, the Ministry added that it hopes the rules will ensure compliance by intermediaries. MeitY stated that the Rules move away from policies without principles and would enable an open, safe, transparent, and accountable Internet for Indians. It added that it was committed to improving the ease of doing business in India, and in no way wanted to stifle the operations of start-ups.

Responding to a question on who the Rules applied to, it stated the definition of intermediaries remained the same as when the Rules were first notified last February. This indicates that the Rules may be applicable to all intermediaries listed under the Information and Technology Act, 2000 (IT Act). Describing the IT Act as a mezzanine law for Indias Information and Technology sector, the Ministry hinted toward a contemporaneous law in the making that would address the issues raised by the stakeholders and centre user harm. It suggested that a consultation on the law was forthcoming.

The discussion was chaired by Rajeev Chandrasekhar, Minister of State for Electronics and Information Technology, and senior officials from MeitY. Held in a hybrid format with over 50 physical participants and close to 100 virtual attendees, the consultation drew lawyers, researchers, industry bodies, and representatives from Indias intermediaries.

The proposed amendment to Rule 3(1)(a) directs Intermediaries to enforce their terms of service, user agreement, and rules and regulations. The proposed amendment to Rule 3(1)(b) causes the user not to transmit certain kinds of content onlinethese include content that belongs to someone else, is harmful to children, harms national integrity, or is defamatory in nature.

When Should Platforms Moderate Content?:Representatives of industry bodies repeatedly questioned how these rules should be enforced by intermediaries. That is, should intermediaries monitor content before it is published through proactive content filtering mechanisms? Or, should they monitor content once it is published?The former could give rise to pre-censorship by intermediaries eager to over-comply with the law. The latter could involve monitoring at a logistically infeasible scale for intermediaries.

MeitY stated that ensuring compliance with the Rules does not imply proactive content moderation. Rather, once an intermediary receives notice that a piece of posted information violates the Rules, they should act to take it down immediately. A Ministry representative added that Rules 3(1)(d) and 3(1)(g) clarify how content moderation can be operationalisedthe amendments merely seek to mandate that these rules are enforced. MeitY reiterated its stance that intermediaries have to comply with Indian laweven if it affects their business models or technologies.

The Ministry appeared open to adding clarificatory language on post-facto content moderation procedures. It also suggested submissions from those attending on how to operationalise these provisions.

Do the Rules Challenge Shreya Singhal?:Others added that the Rules may challenge the Supreme Courts 2015 verdict inShreya Singhal v Union of India, by delegating the interpretation of lawful or unlawful content to intermediaries. Similar iterations of this question cropped up during the meeting.

The Ministry responded that it was moving away from policies without principles. MeitY envisions an Internet that is open, safe, and accountableso, whatever content falls afoul of Indian law and intermediary rules needs to be acted on. Intermediaries are not being asked to judge legality.

Do All Intermediaries Have the Capacity to Comply with the Rules?: Some stakeholders added that implementing these amendments differs based on the intermediary, information, and user action. Smaller intermediaries may not have the proximity to information or know-how to cause a user not to upload something. Checking the legality of certain types of information, like hyperlinks, may be difficult to do for these types of intermediaries. Finally, the definitions of the content types prohibited online were vague and expansiveleaving Indian internet users with a wide range of things that they cannot do. Other representatives requested that some of these content types be struck down from the Rules, adding that whether content is defamatory, insulting, or inflammatory is a question even Courts struggle with.

After listing the different types of concerning speech listed in Rule 3(1)(b), as well as their various modes of transmission, MeitY firmly disagreed with the proposition that they were too broad. The Rules, it stated, have been designed to ensure absolute clarity on the nature of accountability the Indian government desires. However, it added that it was not wedded to the language used in the provision, and would consider submissions requesting the clarification of terms used in the amendment.

Rule 3(1)(m) directs intermediaries to ensure the accessibility of its services to users, complemented by reasonable due diligence, privacy, and transparency. Rule 3(1)(n) adds that the intermediary should respect the rights afforded to Indians under the Constitution of India.

How is Accessibility Defined?Stakeholders present raised concerns over the definition and scope of accessibility itself. For example, Rule 3(1)(m) can be interpreted as ensuring that there is no discrimination in services provided to users. However, it could also be interpreted as ensuring intermediary services are accessible to the disabled. Some added that it was unclear as to what steps would need to be taken to ensure accessibility. They inquired whether failure to comply with the provision would lapse the safe harbour provision for the intermediary.

The Ministry appeared ready to issue fresh language on the definitions. On the question of procedure, it stated that this was a matter of availability and access. Describing the provision as an unproblematic omnibus clause, MeitY added that no service can be availed of by only certain groups of people.

Will the Rules Impact Start-ups?:Notwithstanding this definitional confusion, multiple stakeholders representing industries noted that Rule 3(1)(m) may negatively impact start-ups and smaller intermediaries. These entities may simply not have the capacity to ensure accessibility to all users. The provision may also increase compliance costs for them. Additionally, they questioned whether a private entity can be compelled to provide a user a service, given that they are usually bound by a contractual relationship.

Linking its response to Indias tryst with Net Neutrality in the late 2010s, the Ministry responded by stating that no platform can deny a user access to a service. Describing the question of compliance costs as a bland claim, MeitY reiterated that it in no way sought to impede the growth or interests of start-ups. It appeared open to submissions on potential material harms to start-ups as a result of the provisions.

Are the Rules Practicable?:Some stakeholders added that the nature of accountability desired by the Ministry has to be practicable. That is, the intermediary has to be able to actually implement the provision.

Intermediaries set out to conquer the world with a set of assumptions [on how they will operate], responded the Ministry. However, it concluded that the governments of the world have now woken up to keep citizens on the Internet safe. In short, if an intermediary believes a law is impractical, then that cant be a valid reason to change the law.

The Ministry added in another response that constitutional rights have been included in the Rules to ensure non-discrimination by intermediaries in grievance redressal. It stated that it had received many emails suggesting that the language in Rule 3(1)(n) was too soft in asking intermediaries to respect the Constitution. It stated that it may be inclined to harden the language of this provision.

The amendments to Rule 3(2)(a)(i) direct the Grievance Officers of an intermediary to acknowledge complaints relating to violations of Rule 3(1)(b) within 24 hours. Actions included in acknowledgement are suspension, removal or blocking of any user or user account. The complaint should be redressed within 72 hours.

Is the Intermediary an Arbiter of the Law?:Some stakeholders present argued that the lists of prohibited content under Rule 3(1)(b) were open to subjective interpretationdisposing of them in 72 hours may result in the intermediary hastily adjudicating on content. They cautioned that the intermediary should not become an arbiter of the provisions.

The Ministry stated that it was clear that intermediaries are not arbiters. They are simply encouraged to do their jobsthat is, enforce moderation policiesthrough the amendment. It added that viral content spreads much faster online, making the offline mechanism of approaching the Courts for takedowns infeasible. Approaching the judiciary may also raise barriers for Indian users of the Internet seeking grievance redressal. Can we ask someone in a village to file a Writ Petition against someone sitting in Menlo Park?

Some stakeholders submitted that the 72-hour redressal window may conflict with Prajwala v Union of India.A Supreme Court case concerning the circulation of child pornography online, Orders issuedby the Court dictate that such content should be expeditiously taken down by authorised officials within specified timelines. Stakeholders present suggested that content types like child pornography should be treated sensitively, with grievances addressed within a faster timeframe.

The newly inserted Rule 3(3) proposes the formation of a Grievance Appellate Committee (GAC). The GAC is an alternative redressal mechanism to approaching the Courts for users appealing decisions taken by Grievance Officers. Intermediaries must comply with Orders passed by the GACwhose members will be appointed by the Union government.

What is the Legal Basis of the GAC?: Representatives of industry bodies questioned whether the Rules are empowered to institute a quasi-judicial body like the GAC, without the parent statute (the Information and Technology Act, 2000) enabling it.

The Ministry responded by noting the rise in complaints received since the enactment of the IT Rules last year. It claimed that intermediaries appeared to be applying the Rules arbitrarily, leading to more Court cases and appeals to MeitY on these matters. The GAC acts as a middle layer of grievance redressal between the intermediary and the Courts. It also acts as a disincentive for platforms that are currently not fulfilling their grievance redressal obligations under the IT Rules.

Are There Alternatives to the GAC?: Noting the Ministrys comments on GAC emerging from the absence of a credible self-regulatory mechanism for intermediaries in India, representatives of industry bodies and prominent social media intermediaries probed whether MeitY would be open to such a mechanism in the future.

The Ministry emphatically stated that it is open to such a mechanismthe burden of grievance redressal is not something the Union should have to take on. It described the GAC as a mezzanine intervention until intermediaries step in with a better solution in the near future. It appeared open to receiving proposals on such self-regulatory bodies.

How Will the GAC Function?:Many stakeholders requested clarifications from the Ministry on the composition of the GAC, and the various functions its members would perform. With some citing Supreme Court verdicts, stakeholders further probed whether an adjudicatory Committee can be set up without members of the judiciary present.

The Ministry stated that the government will constitute the Committee in a transparent manner. It reiterated that it has no desire to form a body like the GACand that intermediary non-compliance had forced it to step in.

Will the GAC Affect Fundamental Rights?:Some stakeholders further added that by adjudicating on intermediary decisions, the GAC may essentially become one of the arbiters for what constitutes lawful speech online. This may lead to censorship. Clarifying the procedures of the Committee in the Rules would be useful to ensure no violation of Fundamental Rights takes place.

Describing concerns of censorship as a purist argument, the Ministry reaffirmed that the GAC simply incentivises platforms to follow their own rules and the laws of India.

Some stakeholders representing commercial enterprises welcomed the formation of the GAC, noting that they had been on the receiving end of ineffectual Grievance Officers. They suggested introducing a penalty for intermediaries for every act of non-complianceat an amount as small as one rupee.

The Ministry noted that currently, the worst penalty an intermediary can face is losing safe harbour under Section 79 of the IT Act, 2000. Noting that it had not currently envisioned financial penalties on intermediaries, it appeared open to considering them in the future.

Some stakeholders suggested that before content gets taken down under Rule 4(8)(a), users be provided a hearing to appeal the decision, as post-facto appeals are hard to obtain from intermediaries. Others suggested introducing penalties for intermediaries who have wrongfully taken down a users accountas this amounts to a civil debt for them.

Some also suggested a graded system of penalties for intermediariesinstead of blocking their services under Section 69(a) of the IT Act, 2000, for non-compliance. They suggested temporarily blocking the onboarding of new users to penalise such intermediaries, arguing that this strategy worked well in the RBI-MasterCard standoff over the last year.

Other stakeholders wanted the GAC to operate as an Online Dispute Resolution mechanismto mitigate the prohibitive costs of appearing in person for hearings. Stakeholders added that the body should include consumer or user representatives, as they are on the receiving end of lacklustre grievance redressal.

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Censorship fears over India's IT Rules as wrangle continues with MeitY - MediaNama.com