Introduction
On October 28, 2022, the Ministry of Electronics and Information Technology notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“Amendment Rules”). The revisions impose additional requirements on intermediaries, broaden the scope of their current obligations, and establish a grievance appeals procedure.
The government emphasised that the Amendment Rules introduce a cooperative accountability structure to create an accessible, secure, and reliable online environment for Indian internet users. If intermediaries fail to uphold the “due diligence” requirements imposed by the Amendment Rules, they run the danger of losing the safe harbour protection provided by Section 79 of the Information Technology Act of 2000 (i.e., immunity from liability for any content created by third parties).
Highlights of the Amendment Rules
The Amendment Rules bring about a few notable changes in the existing regime which are elaborated below-
1) Grievance Appellate Committee
One of the significant changes is the addition of a Grievance Appellate Committee (GAC), which will be established within three months of the date on which the Amendment Rules were published. The GAC would consist of a chairperson and two full-time members (chosen by the Central Government), two of whom would be independent, and one would serve as an ex-officio member. According to the erstwhile provisions, platform users would file complaints with the grievance officer chosen by the intermediary but the Act did not include an appeal process. As per the provisions of Rule 3A of the Amendment Rules, any person who is aggrieved by the decision of the Grievance Officer, can appeal to the GAC within thirty days of receipt of communication from the grievance officer.
2) Rules, Privacy Policy and User Agreement to be published in languages mentioned in Schedule VIII of the Constitution
The Amendment Rules require the intermediaries to prominently disclose the rules and regulations, privacy policy, and user agreement in English or any language listed in the Eighth Schedule to the Constitution on their website, mobile-based application, or both, as the case may be in accordance with the choice of the user. This is an attempt to make the terms of use of the website more comprehendible to the diverse Indian population.
3) Intermediaries to “make reasonable efforts” to prevent unlawful activities on its platform
The Amendment Rules require that an intermediary should “make reasonable efforts” to prevent users of its computer resource from engaging in activities prohibited under the Amendment Rules, such as hosting, displaying, uploading, modifying, transmitting, publishing, or storing information that is harmful to children, belongs to a person other than the user, intentionally communicates any misinformation , violates someone else's intellectual property rights, threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order etc. Prior to the Amendment Rules, the intermediaries were only required to inform the users about the prohibited activities. The new provisions impose a positive obligation which would require the intermediary to actively monitor all the activities on its platform to ensure compliance of the Rules. There seems to arise a possible conflict with the provisions of Section 79 of the IT Act, 2000 under which the intermediaries could claim safe harbour.
4) Intermediary to take reasonable measures to ensure accessibility, due diligence, privacy and transparency
The Amendment Rules further require intermediaries to take all appropriate steps to guarantee that users can access their services and have a reasonable expectation of diligence, privacy, and transparency. All rights granted to citizens under Articles 14, 19, and 21 of the Indian Constitution must be respected by the intermediaries.
5) Expedited Resolution of Complaints
The Amendment Rules now mandate that the intermediary take expedited action and resolve complaints within seventy-two hours. However, this 72-hour requirement does not apply to the prohibited content that:
belongs to another person and to which the user does not have any right
infringes any patent, trademark, copyright or other proprietary right
contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource.
In the above mentioned situations, the Amendment Rules prescribe that the complaint to be resolved within 15 days.
Conclusion
The new Amendment Rules seek to empower users and Indian netizens by giving them greater transparency and accountability on part of the intermediaries. Detailed provisions on regulating harmful and obscene content on the internet is a welcome change. The Amendment Rules aim to empower users to surf through the internet freely and not worry about privacy concerns. Moreover, the establishment of the GAC as well as expedited time limits to review complaints further secures the interest of the users. It would be worthwhile to observe how effectively different intermediaries—large and small—will be able adhere to the new rules set by the Amendment Rules.
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