Draft Amendments to IT Rules, 2021

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    • Recently, the Ministry of Electronics and Information Technology has published a fresh draft of amendments to the Information Technology Rules, 2021.

    What are the proposed amendments to the IT Rules, 2021?

    • Creation of government-appointed appeal committees:
      • It will be able to veto content-moderation decisions taken by social media intermediaries like Facebook, Twitter and YouTube.
    • Grievance Appellate Committees:
      • The Central Government shall constitute one or more Grievance Appellate Committees, which shall consist of a Chairperson and such other Members, as the Central Government may appoint.
      • What it essentially means is that in case a user is not satisfied with the content moderation decision taken by a company’s grievance officer, they can appeal that decision before the proposed government-appointed appeals committee.
      • Every order passed by the Grievance Appellate Committee shall be complied with by the concerned intermediary.
      • Currently, the only recourse a user has against companies’ content decisions is to approach the courts.
    • Placing additional responsibilities on grievance officers appointed by social media companies:
      • It says that if a user complains about content which is “patently false”, infringes copyright, and threatens the integrity of India, among other things, a grievance officer will have to expeditiously address it within 72 hours.
      • Under current rules, grievance officers have 15 days to act on and dispose of users’ complaints.
    • India-based resident grievance officer:
      • Social media companies like Facebook and Twitter are mandated to appoint India-based resident grievance officers as part of their due diligence as ‘intermediaries’ who enjoy legal immunity from third-party content on their platform.

    What was the need of these provisions?

    • Constitutional rights of Indian citizens: Proposed amendments will ensure that Constitutional rights of Indian citizens are not contravened by any big tech platform by ensuring new accountability standards.
    • Enforcement: It will ensure “actual enforcement of requirements in IT Rules, 2021 in letter and spirit.
    • Opportunity to explain their actions: De-platforming of users by social media companies without allowing them an opportunity to explain their actions is a recurring complaint that the government has received from users.
    • Absence of Regulatory Body: For OTT and social media, there was no regulator like
      • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
    • Poor, Offensive and Abusive Content: The shows like Tandav, AIB roast, etc were highly criticised for their biassed and adult content.
      • With the deeper reach of smartphones, children and youth are being misled by such content.
      • Presence of Clauses provisioning Reasonable Restrictions over Fundamental Rights.
    • Threat to Traditional Media: Due to less regulation and improving technology, these new social media were threatening and exploiting traditional media.
      • Facebook banned News pages in Australia.
    • Piracy and illegal content sharing: The role of social media was criticised during Delhi Riots, Farmer Protests, etc.
      • Further a lot of fake news were doing errands on such platforms due to lack of accountability.
    • Double Standards as per Country and Government: In the past, social media has shown differential treatment for Europe and Asian Countries.
      • Further, event based bias was also seen in a few cases.
    • Increasing Digital Crimes: Radicalisation, Terrorist recruitment, Digital hacking, Child pornography and other henious crimes, etc are increasing.

    Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

    • Definition of Digital Media: It will cover digitised content that can be transmitted over the internet or computer networks.
      • It also includes intermediaries such as Twitter and Facebook, and publishers of news and current affairs content.
      • It also includes so-called curators of such content.
      • Publishers of news and current affairs content will cover online papers, news portals, news agencies, and news aggregators.
    • Not Covered: The act does not include the e-paper of any newspaper because print media comes under the purview of the Press Council of India, anyway, and has to follow established guidelines.
      • It also does not cover news operations that do not qualify as a “systematic business activity” — effectively excluding blogs and non-profit publishers.
    • Online News Media’s treatment at par with Traditional Media: The Digital Media will also be brought under the ambit of section 69(A) of the Information Technology Act.
      • Section 69(A) gives takedown powers to the government.
      • It also deprived the intermediaries of their “safe-harbour protections” under Section 79 of the IT Act.
      • Newspapers and TV news channels are governed under the Press Council of India Act, 1978 and Cable Television Networks Regulation Act, 1995 respectively.
      • According to the proposed changes, these acts will also apply to online news and current affairs portals under the Code of Ethics.
    • Three Tier Check Structure: Part III of the rules imposed three-tier complaints and adjudication structure on publishers.
      • Self-regulation.
      • Industry regulatory body headed by a former judge of the Supreme Court and High Court with additional members from an I&B ministry approved panel.
      • Oversight mechanism that includes an inter ministerial committee with the authority to block access to content.
        • The Inter ministerial Committee can also take suo motu cognisance of an issue, and any grievance flagged by the ministry.
    • Content Moderation Officers: Social media companies may need to appoint officers who will be responsible for complying with content moderation orders.
    • Originator of Message: New, stricter guidelines make it mandatory for platforms such as WhatsApp to aid in identifying the “originator” of “unlawful” messages.
    • Grievance redressal portal: The rules mandate the creation of a grievance redressal portal as the central repository for receiving and processing all grievances.
      • They ask intermediaries to act on certain kinds of violations within 24 hours, and on all concerns of a complainant within 15 days.
    • Information Disclosure to Competent Authorities: The rules also say that competent authorities, through an order, may demand pertinent information for the purposes of prevention, detection, investigation, prosecution or punishment of crimes.
      • However, It excludes the intermediary from having to disclose the content of the personal messages.

    Issues/ Criticism

    ·         Not addressing grievances: The IT Rules, 2021 provide for a robust grievance redressal mechanism. However, there have been many instances that grievance officers of intermediaries either do not address the grievances satisfactorily and/or fairly.

    • Unconstitutional: It violated Article 19(1) (a) (freedom of speech and expression).
    • Over Regulation: This administrative regulation on digital news media would make it virtually impossible for small or medium-sized publishers, such as the petitioner, to function
      • For the IT Act to be used as a content control mechanism, especially through exercise of powers aimed at intermediaries which do not originally publish content, seems to be an overreach of executive power.
    • Curb Freedom of Artistic Expressions: The present norms put a curb on the Freedom to Artistic Expressions under Article 19.
    • Selective targeting: It has also been alleged that the rules will be more misused than for real regulation.
      • There are instances when the government tried to curb certain Anti- Government Agendas while ignoring populist fake news.
    • Rising Intolerance and Populist measure: The uproar over series like Tandav and AIB Roast are just a reflection of lack of tolerance.
      • Most arguments like abusive language, against the cultural ethos are either vague or irrelevant as they often depict day to day life.

    Way Ahead

    • Independent Authority to moderate the content: The Independent Authority may be appointed in consultation with the Leader of Opposition and Judiciary to ensure a neutral person for regulating the content.
    • Judicial Commission to decide the definitions: The definitions should be precisely defined to avoid any controversy in future.

    Source: IE