RECENT AMENDMENTS IN THE INFORMATION TECNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) 2021
The Ministry of Electronics and Information Technology (“MeitY“) in the previous year presented various amendments in the Information Technology (Intermediary Guidelines Digital Media Ethic Code) 2021, and is still in the process of amending its provisions.
Meity vide notification dated October 28, 2022, amended the Information Technology (Intermediary Guidelines Digital Media Ethic Code) 2021 (“IT Rules“), by introducing the Information Technology (Intermediary Guidelines Digital Media Ethic Code) Amendment Rules, 2022 (“Amendment Rules“). It has advocated this amendment by pointing out the flaws and inadequacies in the existing regulation with regard to big social media and OTT platforms.
Furthermore, the Ministry has also proposed amendments to the IT Rules (“Draft Amendments“) in order to include the online gaming industry in the ambit of Information Technology legislations.
Hence, in order to understand the key amendments that have been done and to analyse the trajectory of the IT Rules so framed, it is necessary to read all the amendments in entirety and understand the legislative intent behind the same.
COMPREHENSIVE TIMELINE OF AMENDMENTS
KEY AMENDMENTS TO THE INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES DIGITAL MEDIA ETHIC CODE) RULES, 2021
- Intermediaries must assure user compliance:
- Prior to the amendments, Rule 3(1)(a) required the intermediaries to disclose rules, regulations, privacy policies, etc. prominently on their website or mobile application as part of their due diligence requirements.
- The Amendment Rules have now strengthened these obligations by directing the intermediaries to ensure the compliance of the said rules.
- Intermediaries to use certain language:
- The Amendment Rules state that the rules must be published in English or in any of the 22 regional Indian languages listed in the Eighth Schedule of the Indian Constitution on their respective platform.
- In order to comply with the stated rule, the intermediaries would need to provide an option to its users to choose a language of their preference, in which such information will be made accessible.
- Intermediaries must use reasonable efforts to cause users to comply:
- This additional clause appears to have been added to clarify that the intermediary must take steps to ensure the users compliance with the rules. However, the Amendment Rules do not clearly mention what further “efforts” the intermediary must make.
- Revisions to prohibited content:
- Formerly, intermediaries were required to make sure that “defamatory” and “libellous” content was not hosted on their platform as per Rule 3(1)(b)(ii). However, the terms “defamatory” and “libellous” have been omitted from the said clause in the Amendment Rules.
- The purpose of this omission is to rationalise this clause by removing the responsibility for an intermediary to determine whether content is “defamatory” or “libellous,” as the review by competent courts shall be used to make any such assertion.
- Also, the list of prohibited content that an intermediary cannot transmit or post, now includes anything that may instigate violence between certain religious or caste groups.
- Intermediary not to be a party to “misinformation”:
- The definition of “misinformation” has been added to Rule 3(1)(b)(v) of the Amendment Rules, stating that an intermediary is forbidden from knowingly disseminating any false information to its users.
- While the phrase “misinformation” has not been defined, it might have a significant effect on any third-party content operated by an intermediary.
- Intermediaries must take responsibility for ensuring accessibility:
- Rule 3(1)(m) as added to the Amendment Rules, mandates that intermediaries must take responsibility for ensuring that their services are accessible to users and that they have a reasonable expectation of transparency, privacy, and diligence. The rationale for such addition could be to ensure easy accessibility of the services provided by the intermediaries by its users.
- The Amendment Rules do not, however, make it clear what further steps must be taken by the intermediaries to ensure compliance of this regulation.
- Respect for fundamental rights by intermediaries:
- Rule 3(1)(n) has been added by the Amendment Rules, requiring intermediaries to uphold the fundamental rights of Indian citizens as guaranteed by Articles 14 (equality before law), 19 (freedom of speech and expression), and 21 (protection of life and personal liberty).
- The specific actions that intermediaries must take as a consequence of this amendment, or how they must “respect” constitutional rights are not entirely obvious. Furthermore, it is unclear how a violation of these fundamental rights might be enforced against non-sovereign private actions.
- Modifications to the grievance procedure:
- Prior to the Amendment Rules, Rule 3(2)(a)(i) required the Grievance Officer to acknowledge complaints within 24 hours of receipt and to resolve them within 15 days.
- Intermediaries are still required to acknowledge complaints within 24 hours and to resolve them within 15 days of the date of receipt; however, complaints regarding content that fits into one of the categories listed in Rule 3(1)(b) must be resolved within 72 hours of the complaint being received. The exception to this are subclauses (iv) and (ix), which talk about the infringement of patent, trademark, copyrights and online games which are not in conformity of Indian laws, respectively.
- Moreover, Rule 3A(4) mandates that the Grievance Appellate Committee make every effort to settle user appeals within 30 days of the appeal’s receipt.
HIGHLIGHTS OF THE PROPOSED BILL,2023
MeitY published a copy of the proposed Draft Amendments on January 2, 2023, with the aim of regulating online gaming as an intermediate activity. With increased users there is a need to ensure that online games are offered in compliance with Indian laws and that the users are appropriately protected against any potential harm that may be caused by playing online games.
- ‘Online Game’ and ‘Online Gaming Intermediary’ definitions:
- The Draft Amendments to the IT Rules were released in 2023 and defines an “Online Game” under Section 2(qa) as “a game that is offered on the Internet and is accessible by a user through a computer resource if he makes a deposit with the expectation of earning winnings;” The phrases “Deposit” and “Winnings” in this context refer to both the deposit and the prize that will be awarded based on the user’s performance, whether it be in cash or in kind.
- A third party that provides an online game is referred to as an “Online Gaming Intermediary” as per the IT Act.
- Self-Regulatory Bodies:
- The Draft Amendments include provisions for self-regulatory bodies (“SRBs“) to develop a framework for ensuring that all online gaming interests are consistent with India’s sovereignty and integrity, defence, security, friendly relations with foreign states, maintenance of public order and preventing incitement to commit any crimes that are punishable by law.
- All SRBs must register with MeitY, who are then given the main duties of granting memberships to online gaming intermediaries and registering the online games provided by the intermediaries upon fulfilment of the specific requirements.
- The Draft Amendments state that SRBs must also develop a framework with a criteria for the registration of online games, test and verify that online games adhere to the framework, set up a grievance redressal framework, and establish a time-bound resolution process for complaints that cannot be resolved by online gaming intermediaries. The registration of an SRB may be suspended or revoked by MeitY if it deems it essential to do so and after providing the SRB with a hearing opportunity.
- Additional Due Diligence Procedures for Online Games:
The Proposed Amendments would establish additional due diligence procedures specifically for online gaming intermediaries. These measures include:
- The intermediary shall publish a distinct indicator of the registration granted by SRBs.
- The Draft Amendments have stipulated that the online gaming intermediary must adhere to the process and benchmarks established by the Reserve Bank of India (RBI) for regulated firms under the Master Instructions – Know Your Customer (KYC) Directive, 2016.
- The appointment of a Chief Compliance Officer (CCO), who must be a senior manager or a key personnel employee of the intermediary and a resident of India. The CCO is in charge of coordinating with law enforcement organisations to ensure orders or requisitions are followed as well as monitoring compliance with the Intermediary Regulations.
- The selection of a Nodal Officer, who must reside in India and work for the intermediary and coordinates with law enforcement agencies around-the-clock.
- The selection of a grievance officer, who must reside in India and work for the intermediary.
- Implementing a system for handling complaints must involve a method for receiving them and a system for tracking their progress using a specific ticket number. The method must include giving the complainant explanations for any actions or inactions related to the complaint or grievance.
- A physical Indian address is essential for an online gaming intermediary, and the information must be made available on the intermediary’s website and mobile application.
The IT Rules aim to address the concerns of the citizens and maintain digital sovereignty without infringing users’ digital privacy and personal liberty. The intent of the said Rules is to empower the ordinary users of social media platforms and OTT platforms, by introducing a standard grievance redressal mechanism having an obligation to resolve all/any dispute expeditiously. However, there has been strong oppositions of the IT Rules for the increasing limitations on the rights of free speech of the users on digital platforms. The Amendment Rules seem to further intensify the aforesaid limitations, and further provides for more severe penalties for any harm done to any rights of the users. The Amendment Rules lay down modifications that enhances the obligations of the intermediaries which shall ensure a more fool-proof regulatory system. It is onerous to create such an extensive piece of legislation that is in par with ever changing and diversified technology, yet the intent of the Indian legislature is very firm on creating such framework.
In furtherance with the said amendments, the provisions that have been inculcated are ambiguous and require additional clarifications on the same. The aforesaid clarifications once issued, would eliminate the risk of non-compliance by the intermediaries as well as the grievance redressal officers, since the clarifications would lay down a more elaborative procedural aspect of the definitive clauses.
The Amendment Rules would establish GACs which gives the power to the Central Government to censor the speech, as per the provisions, are not in compliance with the Rules. Such power provided to the government may become a threat to the right of free speech of people. Hence, such ultimate power should have been vested with an independent body i.e., a court or any such adjudicating authority, as may be established.
Additionally, there is lack of information on the operational aspect of the GACs and the procedure for approval of a case for appeals for review. Such lack may cast doubts on the independence of the body and the government’s capacity to influence content moderation decisions. The captioned provisions empowers the government to censor communications for reasons not covered by Article 19(2) of the Constitution or Section 69A of the IT Act. Hence, a more detailed clarifications are awaited to clear such ambiguities and ensure the establishment of an independent functioning body.
The Amendment Rules contains some definitions which are unclear and open to interpretation. Some of the grounds listed in Rule 3(1)(b), such as “misinformation,” are not definitive, and may be interpreted in various ways, making it difficult to establish a clear standard for what content qualifies as misinformation. The current absence of natural justice, transparency and accountability may lead social media platforms to behave as proactive arbiters of what speech is acceptable. It might also result in arbitrary censorship, which could stifle free expression on the platforms. This makes it crucial to clarify the definitions in the Amendment Rules and ensure that they are applied consistently and fairly. Additionally, social media platforms must establish clear and transparent guidelines for content moderations so that they can promote free expression while also upholding their responsibility to prevent the spread of harmful content.
Lastly, with respect to the Draft Amendments, it shall be noted that gaming and gambling is a state subject in India as per Schedule VII of the Indian Constitution, hence, any laws made on such subject may lead to jurisdictional overlap. On the other hand, it would also lead to uniformity, since there are a lot of difficulties faced by companies undertaking gaming businesses.
Keeping all of the aforesaid in view, it may be concluded that the legislative intent behind the amendment can only be achieved post the issuance of detailed clarifications by the government.