The recommendation for a Self-Regulatory Body (SRB) for social media companies, and other intermediaries, has been rejected by the Internet Freedom Foundation (IFF) in its comments on the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code ) Rules, 2021.
The comments, sent on July 4th, further criticize provisions of the Rules including those instituting a Grievance Appellate Committee, and enforcing users’ compliance with the Rules. They also ask for the withdrawal and reworking of the IT Rules 2021, the creation of new intermediary liability and content moderation frameworks, and a working group for the same.
why it matters: On June 6th, nearly a year after the Rules’ enactment, the Ministry of Electronics and Information Technology (MeitY) released a set of proposed changes to the 2021 IT Rules for public consultation. The changes include instituting a new grievance redressal mechanism (the Grievance Appellate Committee or GAC), shortening existing grievance redressal timelines, and making intermediaries respect constitutional rights. According to the government, the amendments will bring about greater accountability for Big Tech platforms by making them respect both constitutional rights and the new grievance redressal mechanism. However, industry bodies, as well as think tanks, have since criticized the Rules for potentially impinging on the free speech of users, imposing greater compliance burdens on intermediaries, and for being vague and illegal.
The highly controversial IT Rules were enacted in May 2021. Challenged in nineteen separate cases, multiple parts of the Rules were subsequently struck down or put on hold by courts—while these mostly related to provisions for news media organizations, platforms also found themselves in a soup. Nearly a year later, IFF’s comments provide further clarity on what could be right and wrong with the newly proposed amendments.
Koo’s Faulty Proposal for a Self Regulatory Body
“Koo, a micro-blogging platform, voicing its full support for the Draft IT Rules Amendment, 2022, including the establishment for an Appellate Committee, offered an alternative concerning the GAC in case of its non-establishment. It recommended the creation of a ‘single industry wide SRB working under a Code of Conduct set up by Meity’. Furthermore, Koo even volunteered to ‘anchor and coordinate creation of the SRB and an Indian Code of Conduct’,” IFF said, in its submission, referring to statements made during the public consultation meeting undertaken by MeitY on the amendments.
Strongly opposing the creation of such a body as well as such a code of conduct, IFF said that the proposal could lead to self-censorship by social media intermediaries.
“This has already been noticed with OTT platforms, where multiple shows on these on-demand video streaming platforms had been censored or canceled in view of the IT Rules, 2021 before Constitutional Courts intervened. Any such model of regulation will likely have a substantial impact on citizens’ digital rights, result in economic harm, and also negatively impact freedom of speech and expression, and access to information,” IFF added.
Contested Legality of the Grievance Appellate Committee
IFF broadly provided three arguments against the creation of the GAC.
i) Committee should be created by the legislative
“Firstly, it is a settled principle of law that adjudicatory bodies which settle disputes between parties can only be constituted by the legislature. In the absence of a law enacted by the Parliament empowering the executive, the GAC will be unconstitutional. Draft IT Rules Amendment, 2022 are an amendment to a delegated legislation and not a statute passed by the Parliament,” the submission says.
ii) IT Rules do not have the power to create such a body
“Secondly, and in any case, any rule notified by the executive must be traceable to the parent act, which in this case is IT Act, 2000. However, the IT Act, 2000 does not contemplate appointment of any such committee,” IFF said.
(iii) Madras High Court struck down the self-regulatory mechanism for the same reasons
‘These rules were stayed [by the Madras High Court] for the same reasons we have critiqued the proposed creation of GAC, ie they made government-appointed committee the arbiter of permissible speech and which could censor contents for grounds extraneous to Article 19(2) of the Constitution without providing any procedural safeguards to protect the fundamental rights of citizens. Hence, there exists the real possibility of ambiguity in enforcement and absence of regulatory clarity that will emerge due to court challenges to the constitution of the GAC following the reasoning of orders already passed on the IT Rules, 2021,” IFF said, referring to the Madras High Court’s verdict staying the three-tier self-regulatory model proposed for media organisations, under the Rules.
GAC Will Lead to Arbitrary Grievance Redressal
IFF batted for wider public consultation for the creation of “a rights respecting framework and a legislative basis for the creation of a regulatory body,” the submission says.
Further it said that given the scale of social media users in India, even a tiny fraction of appeals to the Grievance Officer’s orders would number in thousands. This would thus need a full-fledged adjudicatory apparatus and human resources staffing with persons having judicial training on the GAC, in the absence of which it would lead to an ‘arbitrary pick and choose policy’ in handling cases.
Interventions in Private Contracts Between Intermediaries and Users
The proposed amendments require intermediaries to “ensure” user compliance with their terms and conditions and privacy policies, and to “cause the user” not to post certain types of content. IFF raised objections to these proposals on the following fronts:
i) Enforcing compliance intervenes in the private contract: “Separately, privacy policies, rules and regulations and user agreements, are akin to private contracts between the intermediaries and their users. Mandating the intermediaries by threatening them with criminal prosecution, to ensure that their users comply with these contracts is an unwarranted interference with private enterprises,” the submission says.
ii) Causing users not to post could lead to censorship: “The proposed amendment, by inserting the phrase “shall cause”, increases the compliance burden of platforms to ensure removal of content, listed from (i) to (x) under Rules 3(1)(b), irrespective of a complaint from any users. This is worrying because the grounds mentioned in Rule 3(1)(b) are themselves vague, impossible to implement consistently and prone to misuse Such vaguely worded phrases may cause social media platforms to become pro-active arbiters and quasi-judicial authorities of permissible speech which is already resulting in issues given existing lack of natural justice, transparency and accountability as noted by MEITY. It may also potentially lead to arbitrary censorship,” the submission says.
iii) Violation of the SC’s Shreya Singhal judgment: “In that case it was held that intermediaries must takedown content only on the basis of ‘actual knowledge’ in the form of directions from the Union Government under Section 69A or orders from competent courts or public authorities acting under law. Contrary to the decision, the proposed amendment requires intermediaries to become arbiters of permissible speech and suppress speech based on vague grounds. We are concerned that this may lead to threats of criminal prosecution if they do not proactively takedown speech which according to the Union Government, violates the grounds stated in Rule 3(1)(b),” the submission says.
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