IT RULES-2021

1. Context 

2. Key points

• In June 2022, MeitY put out a draft of the amendments and solicited feedback from the relevant stakeholders.
• The draft generated considerable discussion and comment on the regulation of social media in India.

3. IT Rules, 2021

• World over, governments are grappling with the issue of regulating social media intermediaries (SMIs) in shaping public discourse, the impact of their governance on the right to freedom of speech and expression, the magnitude of information they host and the constant technological innovations that impact their governance.
• Governments need to update their regulatory framework to face emergent challenges.
• In a bid to keep up with these issues, India 2021, replaced its decade-old regulations on SMIs with the IT Rules, 2021 which was primarily aimed at placing obligations on SMIs to ensure an open, safe and trusted internet.

4. Reasons to amend the IT Rules, 2021

1. There was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms
2. To strengthen the grievance redressal framework in the Rules and 
3. Compliance with these should not impact early-stage Indian Startups.

• This translated into a set of proposed amendments that can be broadly classified into two categories.
• The first category involved placing additional obligations on the SMIs to ensure better protection of user interests while the second category involved the institution of an appellate mechanism for grievance redressal.

5. Additional obligations 

• This obligation on the SMIs has now been extended to ensure that its users comply with the relevant rules of the platform.
• Further, SMIs are required to "make reasonable" efforts to prevent prohibited content from being hosted on its platform by the users.
• To a large extent, this enhances the responsibility and concomitantly the power of SMIs to police and moderate content on their platforms.
• This has been met with scepticism 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 on 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.

5.2 Protecting the rights

• A similar concern arises with the other newly introduced obligation on SMIs to "respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21.
• 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.
• However, the wide interpretation to which this obligation is open by different courts could translate to disparate duties on the SMIs.
• Frequent alterations to the design and practices of the platform, which may result from a case-to-case-based application of this obligation, could result in heavy compliance costs for them.

5.3 Prohibited content 

• SMIs are now obligated to remove information or a communication link about 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.

5.4 Accessibility

• SMIs have been obligated to "take all reasonable measures to ensure accessibility of its services to users along with the reasonable expectation of due diligence, privacy and transparency".
• While there are concerns that ensuring "accessibility" may obligate SMIs to provide services at a scale that they are not equipped to, the obligation is meant to strengthen inclusion in the SMI ecosystem such as allowing for participation by persons with disabilities and diverse linguistic backgrounds.
• In this context, the amendments also mandate that "rules and regulations, privacy policy and user agreement" of the platform should be made available in all languages listed in the eighth schedule of the Constitution.

6. Grievance Appellate Committees

• 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.
• Before the IT Rules, in 2021, platforms followed their mechanisms and timelines for resolving user complaints.

7. Appropriate Tools

• However, the performance of the current grievance redressal mechanism has been sub-optimal.
• As evidenced by the transparency reports of SMIs, such as Facebook and Twitter, there is no common understanding of what is meant by the resolution of the complaint. 
• For example, Facebook records only mention the number of reports where "appropriate tools" have been provided.

• Furthermore, transparency reports show that the number of user complaints continues 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.

8. Extant framework

• Moreover, the extant 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).

9. Unclear provisions

• Interestingly, it is unclear whether this is a compulsory tier of appeal or not, that is will the user have to approach the grievance appellate committee before approaching the court?
• The confusion arises from the fact that the press note expressly stated that the institution of the GAC would not bar the user from approaching the court directly against the order of the grievance officer.
• However, the final amendments provide no such indication.
• While this makes the in-house grievance redressal more accountable and the appellate mechanism more accessible to users, appointments being made by the central government could lead to apprehensions of bias in content moderation.

10. Conclusion 

For Prelims & Mains