Technology Law Hotline: Additional compliances for intermediaries under recently amended Intermediary guidelines

India notified the amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) on October 28^th, 2022 by way of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“Amended Rules”). The amendments come into effect immediately, and introduce a number of important obligations for intermediary platforms and introduce a “Grievance Appellate Committee” to decide appeals arising from decisions of an intermediary’s Grievance Officer.

On June 6, 2022, the Ministry of Electronics and Information Technology (“MeiTy”) released draft amendments (“Draft Amendments”) to the IT Rules seeking public comments.

Key aspects of the Amended Rules are discussed below.

1. PUBLICATION OF TERMS AND CONDITIONS IN LOCAL LANGUAGE

1. Rule 3(1) (a) of the Amended Rules require intermediaries to:
   • publish their rules and regulations, privacy policy and user agreement (“User Terms”) on their websites and mobile applications in English or any language specified in the Eighth Schedule to the Constitution for access or usage of its computer resource by any person in the language of his choice, and
   • ensure compliance of the same.
2. Rule 3(1) (f) of the Amendment Rules require intermediaries to periodically (at least once in a year) inform users in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice of about the User Terms or any changes to it.

NDA’s take:

• The requirement to publish User Terms in “language of user choice” is very board. While publication in English and one or few local is reasonable to understand (as India does not speak English across board), there are many languages spoken in India. Meeting the request to provide User Terms in “language of choice” is cumbersome, burdensome, with an added risk of translation not been accurate per se.
• The scope of the term ‘ensure compliance’ with User Terms is vague, i.e., it is unclear whether a) intermediaries are required to ensure that users do not publish any content in violation of the terms and conditions (this will amount to pre-filtration), or b) intermediaries are required to simply enforce their terms and conditions, i.e., take down content which has violated their User Terms. The press note accompanying the Draft Amendments indicates that it is the latter interpretation.
• For compliance with Rule 3(1) (f), intermediaries may need to maintain database of language selected by the user, and should send the User Terms or change to User Terms in the selected language of the user.
• Broadly, intermediaries will need to consider if the exiting tech and processes are sufficient to ensure compliance with these amendments. Reliance on translation tools may be required with an added disclaimer that the translation in languages other than English and Hindi may not be accurate.

2. CAUSING USERS NOT TO HOST, UPLOAD, PUBLISH, STORE, ETC., INFORMATION IN VIOLATION OF USER TERMS

Rule 3(1)(b) of the Amended Rules requires intermediaries to take ‘reasonable efforts’ to ensure that users do not publish the prescribed categories of unlawful content.

NDA’s take:

• The terminology of ‘reasonable efforts, is vague and does not define the exact scope of obligations.
• Once again, entities will need to consider if the exiting tech and processes are sufficient to ensure that users do not publish unlawful content, (e.g. confirmation from user to comply with User Terms, active take down mechanisms for violation of User Terms, unlawful content etc).

3. ACCESSIBILITY TO SERVICE

Rule 3(m) of the Amended Rules requires intermediaries to take all reasonable measures to ensure accessibility of its services to users along with reasonable expectation of due diligence, privacy and transparency.

NDA’s take:

• The requirement to take reasonable measures to ensure accessibility of services to users, and to meet users’ reasonable expectations of due diligence, privacy, and transparency is unclear, i.e.:
  1. The terminology of ‘reasonable measures’ is vague and does not define the exact scope of obligations.
  2. It is unclear what “due diligence” obligations are being referred to here. The IT Rules as a whole prescribe due diligence obligations for intermediaries.
  3. The term ‘transparency,’ can be subjective and is vague i.e., what processes are intermediaries required to be transparent about?
  4. There is no clarity on what could be the ‘reasonable’ expectation of due diligence, privacy and transparency.
• The expectation seems to be that the processes used to monitor, and take down content is fair, transparent and reasonable for all. Intermediaries will need to ensure that user privacy is respected, and the platform policies are transparent.

4. RESPECTING RIGHTS ACCORDED TO CITIZENS UNDER THE CONSTITUTION OF INDIA

Rule 3 (n) of Amended Rules require intermediaries to respect the rights accorded to citizens under the Constitution of India under Article 14, 19 and 21.

NDA’s take:

• Fundamental rights under the Constitution of India such as freedom of speech and expression, and protection of life and personal liberty (which has been interpreted to include the right to privacy), are only enforceable against the State and instrumentalities of the State. These rights are not enforceable against private entities nor have been applied in case of publication of views on other media. For example, an individual cannot require a private newspaper to publish an article, nor force a private TV channel broadcast their interview, citing the fundamental right to freedom of speech and expression. Accordingly, this obligation cannot be imposed on private intermediary platforms (specially by way of rules, under a principal act which does not have such contemplation), nor will such an obligation be enforceable against such platforms and maybe challenged in future.

5. EXPEDITIOUS ACTIONS

Rule 3(2) of Amended Rules requires intermediaries to:

• Resolves complaint in the nature of request for removal of information or communication link relating to a vast variety of legal issues including privacy, obscenity, misinformation, impersonations, etc. expeditiously within 72 hours of such reporting by user and any other complaints within 15 days.
• Build appropriate safeguards to avoid any misuses by users.

NDA’s take:

• The terminology of “appropriate safeguards to avoid misuse by users” is vague and does not define the exact scope of obligations. It appears that the intent is to build a mechanism to prevent frivolous grievances being raised which take up the time and resources of the intermediary.
• Intermediaries will need to address and resolve certain user complaints within 72 hours, except for matters where complaints can be resolved within 15 days. This may involve making challenging determinations, such as whether content is (a) patently false of misleading (which may require fact-checking), (b) threatens public order (which may require determination of local sentiment), among others within a short period of time.

6. APPEALS TO GRIEVANCE APPELLATE COMMITTEE

Rule 3A of the Amended Rules provides for the constitution of ‘one or more’ Grievance Appellate Committees (“GAC”) by the Central Government within three months from the date of commencement of the Amendment Rules (i.e., three months from October 28, 2022, which would be January 28, 2022):

• ‘Any person’ aggrieved by a decision of an intermediary’s grievance officer may appeal against those decisions to the GAC within 30 days of receipt of the officer’s decision.
• The GAC is required to deal with the appeals expeditiously and ‘endeavour’ to resolve the appeal within 30 days of receipt of the appeal.
• Intermediaries are required to comply with orders of the GAC, and publish reports of compliance on their websites.

NDA’s take:

• The framework of setting up a GAC under the IT Rules could itself be challenged on grounds of being unconstitutional, as well as ultra vires the primary legislation.
• The constitution and qualification of members in the GAC are not clear. This is critical given the diverse, and new-age issues that will be taken up before GAC in the future. It is also not clear on how the intermediaries or GAC will deal with issues which require evidence or judicial intervention.
• The process followed by the GAC is unclear. It is also unclear if they will hear representation from the user and the intermediary before taking a final decision on the matter.

FINAL WORD

The Amended Rules will require intermediaries to bring in several process changes. The unclear wording of several of the provisions may result in litigations. For the time-being, the Amended Rules are in effect and intermediaries are obligated to comply, lest they risk losing their safe harbour. It is best that intermediaries review their exiting tech and processes to evaluate if they are sufficient to ensure compliance with these amendments. Intermediaries should also re-visit their User Terms to see if the requirements under Amended Rules are being met. As an example, intermediaries may consider specifically stating that they are committed to principles of equality, free speech, privacy and personal liberty to broadly cover the parameters under Articles 14, 19 and 21 of the Constitution of India. Other relevant changes can be made to their processes and User Terms to meet the requirements of due diligence, privacy and transparency, expected of intermediaries under the Amended Rules.

You can direct your queries or comments to the authors

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The contents of this hotline should not be construed as legal opinion. View detailed disclaimer.