BananaIP’s Comments and Suggestions – Proposed Draft of Amendments to IT Rules, 2021

Background

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 was proposed by the Ministry of Electronics and Information Technology on 25^th February, 2021. The draft amendments to the same were made available for public scrutiny on the 6^th June, 2022, seeking comments and suggestions within thirty days from that date, i.e. by 6^th July, 2022, to dhawal.gupta@meity.gov.in or notan.roy@meity.gov.in, in MS Word (or compatible format) or machine readable PDF format.

Part I – Proposed Changes and General Comments

Proposed Changes:

The first part highlights some of the important changes that are intended to be made to the Rules. Broadly speaking, there are three major changes which are discussed below:

1. The jurisdiction of the Grievance Officer (henceforth referred to as “GO”) and specification of time limit of response, which states within what time from the receipt of complaint must action be taken under Rule 3(2).
2. Changes that are made to obligations imposed on intermediaries as defined by the Act under Rule 3(1)(a), 3(1)(b), 3(1)(m) and 3(1)(n) are as follows:

• Rule 3(1)(a) requires intermediaries to ensure that users comply with all the guidelines or laws as framed by the intermediary themselves or the government, are adhered to by the users.
• Rule 3(1)(b) makes it necessary for the intermediaries to inform the users about these guidelines, thereby also stating that any infringement of provisions under Rules from 3(1)(b)(i) to 3(1)(b)(x) would require action to be taken by the respective intermediary.
• Rule 3(1)(m) makes it necessary for the intermediary to take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency.

3. The setting up of a Grievance Appellate Committee (henceforth referred to as “GAC”), defined under Rule 2(1)(l), its composition and other details are discussed under Rule 3(3). The constitution of GAC as an alternate body to file an appeal, as an alternative grievance redressal mechanism in case of dissatisfaction with the order of GO. It does not form a part of a hierarchy of any kind, and simply acts as an additional body which can process appeals. The gist of the amendment is that the GAC:

• Is constituted by a Chairperson and such other members as the Central Government may prescribe;
• An appeal before the GAC can be filed within 30 days of receipt of communication from the respective GO;
• The appeal must be disposed of within 30 days; and
• Every order passed by the GAC would be binding on the intermediary and they must comply with the same.

General Comments:

In essence, it is commendable that the amendment intends to create more accountability by the intermediary, which is very much required in India at this stage. In furtherance of achieving the goals set out in the proposed amendments, we are hereby submitting our comments as follows:

1. We believe there is room to create more specificity under Rule 3(1)(b)(ii), to call for inclusiveness by the intermediaries and provide an objective standard, using which the intermediary may determine if the content violates the Rules or any other applicable provisions.
2. With reference to accessibility of content on the internet, we suggest the inclusion of the definition of “access services,” under Rule 2(1)(b) within Rule 3(1)(m) which imposes an obligation on intermediaries to improve accessibility, along with reasonable expectation of due diligence, privacy and transparency. For a better understanding of accessibility, one must also refer to the Government of India’s Accessible India Campaign, which intends to, within a set period of time, make access to public websites, online services and platforms accessible to persons with disabilities. This can further be read with the recently published Draft National Policy for Persons with Disabilities as well as the Rights to Persons with Disabilities Act (RPwD), 2016, which extends accessibility compliance to private parties as well.
3. Rule 3(2)(a) mandates the GO to acknowledge complaints as soon as possible and dispose of them in a speedy and efficient manner. In this direction, few of our suggestions pertain to the time limit required for a more transparent functioning of the system, and our specific comments in Part II discuss this even further.
4. With reference to Rule 3(3) which constitutes the GAC, we observed that there is lack of clarity and transparency as to the appointment of officers to the GAC as well as their tenure, jurisdiction, and other such matters. This will be further discussed elaborately in Part II.
5. With reference to content filtering by significant social media intermediaries, it is generally assumed that most of these intermediaries are able to implement independent algorithms which determine content recommendations to its users, thereby prioritising some forms of content over others. It is recommended that the Rules be amended further to avoid random prioritisation or inconsistent targeting of content. Additionally, the intermediaries must also be obligated to inform a user after removing content posted by a user or disabling access to a feature or the platform, along with legitimate reasons for doing the same. This has been discussed in detail in our specific comment on Rule 4(4).
6. Rule 4(6) states that significant social media intermediaries shall implement an appropriate mechanism for the receipt and acknowledgement of complaint. However, to avoid random dismissals of user complaints without stating any legitimate reason to the complainant, we suggest to mandate the intermediary to have a portal through which the complainant may track the status and stage of the process of their complaint(s). The same has been discussed in a detailed manner in the table provided in Part-II.
7. Rule 7 discusses the non-observance of Rules and the penalties imposed. In the IT Rules, it is mentioned how intermediaries are required to comply with certain directions provided by law, governmental institutions, judicial bodies and so on. For example, an order to comply with the GAC’s directions, or the mandatory communication of terms and conditions to the users of the intermediary and so on. We have provided our suggestion with respect to the same under our specific comments in Part-II

Part II – Specific Suggestions and Analysis

The following table is divided into three columns. The first column marks the provision from proposed draft amendment as indicated by the Press Note dated 6th June, 2022. The second column marks our suggestion to the provision indicated in first column, and the third column refers to comments that provide reasons for the suggestion given in the second column.

City	Previous Week	10th June 2022 to 17th June 2022	Percentage of Change
Delhi	118	141	19.49% increase
Mumbai	82	62	24.39% decrease
Chennai	175	389	122.29% increase
Kolkata	32	4	87.5% decrease
Total	407	596	46.44% increase

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These suggestions are compiled and submitted by the Consulting and Strategy Team at BananaIP Counsels

Disclaimer

The views, opinions, comments and suggestions provided in this document are based on the understanding of, and information available to attorneys and experts at BananaIP Counsels working on Information Technology law and related matters. It may be noted that opinions of other legal experts may differ from those of BananaIP’s attorneys and experts. The comments, inputs and suggestions are based on legal research and policy contributions of attorneys/experts at BananaIP, and the firm is not representing any client or a third party with respect to the comments/inputs provided in this document. Also, it may be noted that views of other attorneys at BananaIP may vary from the opinions of those submitting this document.

The Proposed draft amendment to the IT Rules, 2021 can be accessed at: Press Note dated 6 June 22 and Proposed draft amendment to IT Rules 2021.pdf (meity.gov.in)