1. Background

• On February 25, 2021, the Ministry of Electronics and Information Technology (“MEITY“) in consultation with the Ministry of Information and Broadcasting notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules“), under the Information Technology Act, 2000 (“IT Act“). The Intermediary Rules superseded the erstwhile Information Technology (Intermediary Guidelines) Rules, 2011.
• On June 06, 2022, MEITY (as part of the pre-legislative consultation process), uploaded on its website (www.meity.gov.in) draft amendments to Part I and Part II of the Intermediary Rules for public feedback and inputs. A period of 30 days was provided for public consultation and comments were invited from all stakeholders by July 05, 2022.
• Thereafter, on October 28, 2022, MEITY issued and published in the official gazette, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“Amendment Rules“). Under the press release (available here) (“Press Release“) issued by MEITY on the amendments, it has been stipulated that the Amendment Rules are aimed at, amongst others, enhancing due diligence requirements, and ensuring accountability of, social media and other intermediaries. According to MEITY, the Amendment Rules have been notified in the backdrop of complaints regarding the action/ inaction on the part of intermediaries on user grievances regarding objectionable content or suspension of their accounts.
• The key amendments to the Intermediary Rules have been summarized below.

2. Key Amendments to the Intermediary Rules

• Intermediaries to ensure compliance by users. Prior to the amendment, under Rule 3(1)(a), intermediaries were required, as part of their due diligence obligations, to prominently publish rules and regulations/ privacy policy, etc., on their website/ mobile application. Now, the Amendment Rules further enhance these obligations and require intermediaries to not only publish the rules and regulations, etc., but to also ensure that: (i) such rules are published in English, or any language specified in the Eighth Schedule of the Constitution of India (which presently consists of 22 regional Indian languages) as per the language preferred by user; and (ii) such rules are complied with.

To comply with this rule, the intermediaries would, amongst others, need to provide an option to its users to choose a language of their preference, in which such rules and regulations, etc., will be accessible to them.

• Intermediaries to make reasonable efforts to cause users to comply. Prior to the amendment, under Rule 3(1)(b), intermediaries were required to merely inform users through its privacy policy, etc., not to host, display, upload, modify, publish, transmit, store, or share any information that, amongst others, belongs to another person and to which the user does not have any right, is grossly harmful, defamatory, obscene, pornographic, paedophilic, or otherwise unlawful in any manner. The Amendment Rules now impose a legal obligation on intermediaries to not only inform users of its rules and regulations/ privacy policy, etc., but also to make reasonable efforts to cause its users to not host, display, upload, modify, publish, transmit, store, update or share any information that is inter-alia, obscene, illegal, etc. Further, the intermediary is required to inform its users of such rules, in English or any language specified in the Eighth Schedule of the Constitution of India, which is of the user’s choice.

This new provision seems to have been included to ensure that the intermediary’s obligation for compliance is not a mere formality but rather to take some affirmative actions to ensure compliance. The Amendment Rules do not provide any formal guidance on what incremental ‘efforts’ are required to be undertaken by the intermediary to cause the users to comply. However, this amendment could likely increase the compliance for intermediaries and expand their role vis-à-vis its users, as intermediaries may be required to implement some additional measures (such as deployment of technology-based protocols and automated tools/ algorithms/ introduction of content moderation/ filtration/ detection mechanisms, etc.) to ensure that users comply with this provision.

• Changes in the nature of prohibited content. Previously, under Rule 3(1)(b)(ii), intermediaries had the obligation to ensure that ‘defamatory’ and ‘libellous’ content are not hosted on its platform. However, under the Amendment Rules, the words “defamatory” and “libellous” have been removed from this provision. As per the Press Release, the intent of this change is to rationalize this provision by removing the onus from an intermediary to ascertain if content is “defamatory” or “libellous” as this determination should be made through judicial review.

Further, content that could incite violence between different religious/ caste groups has now been additionally included under the types of prohibited content which an intermediary cannot share/ upload.

• Intermediary not to be a party to ‘misinformation’. Rule 3(1)(b)(vi) has been expanded to include the term “misinformation”. An intermediary is not permitted to intentionally communicate any misinformation to its users. While the term ‘misinformation’ has not been defined, this could have far reaching implications on third party content made available on an intermediary’s website/ mobile application.
• Intermediaries to ensure accessibility. A new Rule 3(1)(m) has been added to the Intermediary Rules requiring intermediaries to take responsibility to ensure accessibility of its services to users along with reasonable expectation of transparency, privacy, and due diligence. It appears that the intent of this amendment is to ensure that all users should be able to access services made available by the intermediaries.

Further, the Amendment Rules provides that intermediaries should be mindful of the users’ expectations of diligence, privacy, and transparency. However, the Amendment Rules do not provide clarity on what additional measures (in addition to the due diligence requirements provided under the Intermediary Rules and the existing privacy laws) need to be taken by the intermediaries to ensure compliance with this rule.

• Intermediaries to respect Constitutional rights. A new Rule 3(1)(n) has been added to the Intermediary Rules which mandate the intermediaries to respect the constitutional rights of the citizens of India guaranteed under Article 14 (equality before law), Article 19 (freedom of speech and expression), and Article 21 (protection of life and personal liberty). It is however not clear on the nature of steps that need to be taken by intermediaries in this context, nor the manner in which intermediaries will need to ‘respect’ the constitutional rights. It is also unclear how such breach of fundamental rights would be enforced against private parties performing non sovereign functions. The Amendment Rules also do not provide any guidance as to how intermediaries are expected to strike a balance between contrasting obligations such as proactive removal of content which they consider unlawful and respecting the freedom of speech and expression of users.

• Changes in the grievance redressal mechanism. Prior to the amendment, under Rule 3(2)(a)(i), the Grievance Officer mandatorily appointed by the intermediary was required to acknowledge complaints within 24 hours and dispose of such complaints within 15 days from receipt. While the Amendment Rules still require intermediaries to acknowledge complaints within 24 hours and resolve such complaint within 15 days from the date of receipt of such complaint, the complaints concerning content that falls within the categories set out in Rule 3(1)(b), except sub-clauses (i), (iv) and (ix), are to be resolved within 72 hours of receiving the complaint.

The exceptions include complaints regarding, (a) information belonging to another person and to which the user does not have any right; (b) information that infringes any patent, trademark, copyright, or other proprietary rights; and (c) information that violates any law for the time being in force. Having said that, all other grievances will continue to follow the 15-day window for redressal. The Amendment Rules also contains a proviso whereby intermediaries are required to develop mechanisms to avoid misuse of the grievance redressal mechanisms by users.

Given the reduction in timelines, intermediaries will have to put in place additional measures to proactively handle some complaints within a 72-hour window.

• Introduction of Grievance Appellate Committee: Prior to the amendment, the decisions of the Grievance Officer appointed by the intermediaries were considered final. However, the Amendment Rules allows for the users to appeal the decisions of the Grievance Officer. The Amendment Rules have introduced an appellate body, namely the ‘Grievance Appellate Committee’ (“GAC“). The new grievance redressal mechanism, i.e., establishment of one or more GACs by the Central Government, provides users with an opportunity to appeal against the order of a Grievance Officer (appointed by the intermediary), within 30 days of receipt of such order. Intermediaries are to be bound by the order of the committee.

Having said that, this mechanism does not preclude the user from reaching out to judicial courts separately for addressing their grievance.

The Amendment Rules have introduced additional compliance obligations for intermediaries. While clarity is yet to emerge on some of the ambiguous provisions, intermediaries are required to comply with the requirements provided under the Amendment Rules with effect from October 28, 2022.