Changes to grievance mechanism, more obligations on intermediaries, etc: The draft amendment to the IT Rules, 2021

The Union Ministry of Electronics and Information Technology (MeitY) this week published a Press Note introducing draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 [IT Rules, 2021]..One of the most significant changes sought to be introduced is the creation of a new grievance appellate committee, before which internet users can appeal against the grievance redressal process of intermediaries.The proposed amendments also include changes to the grievance redressal mechanism under the 2021 Rules as well as a clause requiring intermediaries to "respect the rights accorded to the citizens under the Constitution of India.".As per the press note, the amendments have been floated in order to address the infirmities and gaps that exist in the current Rules vis-a-vis Big Tech platforms like Facebook, Twitter, YouTube etc."The goals of these rules are to ensure an Open, Safe & Trusted and Accountable Internet for all Indian Internet Users and Digital Nagriks. These rules have succeeded in creating a new sense of accountability amongst Intermediaries to their users especially within Big Tech platforms," the MEITY noted stated..The following are the changes sought to be made:.1. Intermediaries to ensure that users comply with requirements in Rule 3(1)(a) and Rule 3(1)(b) of IT Rules, 2021The draft amendment puts the responsibility on social media intermediaries to ensure that users comply with due diligence requirements laid down under the IT Rules, 2021. The existing Rules read as follows:.The new Rule 3(1)(b) will read,"the intermediary shall inform the rules and regulations, privacy policy or user agreement of the intermediary to the user and shall cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that...".2. Addition of Rules 3(1)(m) and 3(1)(n)The proposed Rule 3(1)(m) required 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.By way of a new Rule 3(1)(n), the amendment seeks to make intermediaries responsible for protecting all rights guaranteed to users under the Constitution of India. It reads,"(n) the intermediary shall respect the rights accorded to the citizens under the Constitution of India.".3. Changes in the grievance redressal mechanism of intermediariesMost importantly, the draft amendment sets to introduce two more provisos under Rule 3(2) of the IT Rules, 2021, which lays down the grievance redressal mechanism. Grievances related to removal of content under Rule 3(1)(b) will have to be addressed within 72 hours. All other complaints will continue to be addressed with 15 days."This will help to ensure that problematic content is removed expeditiously, and does not become viral over a sustained period of time," the press note states.The second proviso allows intermediaries to implement safeguards to prevent misuse of the grievance redressal mechanism by users..4. Constitution of Grievance Appellate CommitteeThe draft amendment seeks to introduce a Grievance Appellate Committee as an appellate authority for decisions made during the grievance redressal process of intermediary. "Users will have the option to appeal against the grievance redressal process of the intermediaries before this new appellate body. The Committee will endeavour to address the user’s appeal within a period of 30 days. This is made necessary because currently there is no appellate mechanism provided by intermediaries nor is there any credible self regulatory mechanism in place," the press note states.It is made clear that even after this amendment, users will have the right to directly approach a court of law against a intermediary’s decision..Speaking to Bar & Bench, Bobby Jain from Ikigai Law pointed out that many provisions of the controversial IT Rules are under challenge before the courts. On the proposed amendments, he said,"The recently introduced draft amendments to the Rules are also likely to attract considerable scrutiny. This is due to the onerous obligations it puts on intermediaries." .He added,"Apart from the newly built-in appellate mechanism for grievance redressal, the insertion of Rule 3(1)(n) is striking. This Rule requires intermediaries to respect the constitutional rights of Indian citizens, an obligation which is imposed exclusively upon government bodies. As per Article 12 of the Constitution, entities that are either government bodies, or perform a function that is similar to that of the government (public functions) are obligated to protect the fundamental rights available under the Constitution.".On the clarification that users will not be prevented from approaching courts of law directly against intermediaries, Jain said,"The introduction of this rule appears to be a legislative tool to trump the complaints of de-platforming of users by social media platforms, for violation of their terms & conditions. The Delhi High Court is already grappling with a similar issue."Summing up his thoughts, Jain said,"While protecting constitutional freedoms is essential, the government is likely to face a difficult time in proving the constitutional merit of the Rules, as well as its legislative competence to do all that it intends to do through these Rules, which at the end of the day, is a subordinate legislation.".The draft amendment is open for public comments till July 5 and a public consultation meeting will be held in mid-June..[Read the Press Note]