On October 28, 2022, the Ministry of Electronics and Information Technology (‘MEITY’) notified amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘Intermediary Rules’) notified under the Information Technology Act, 2000.

Key Amendments

• Intermediaries to Ensure Compliance by Users and Make Reasonable Efforts to Cause Users to Comply

The obligations of an intermediary in relation to prohibited content (such as content which is obscene, violates third party intellectual property rights, etc.) have been enhanced, and intermediaries now not only need to publish rules and regulations, etc., in relation to the prohibited content and inform its users regarding such rules, but also need to: (i) ensure 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) of the user’s choice; (ii) make reasonable efforts to cause its users to not share, display, etc., any such prohibited content; and (iii) ensure such rules are complied with. Intermediaries may need to take additional measures such as deployment of content filtration / detection mechanisms, etc., to comply with this rule.

• Changes in Prohibited Content

The words ‘defamatory’ and ‘libellous’ have been removed from the list of prohibited content which users cannot host / upload on the intermediary’s website. As per MEITY’s Press Release, the intent of this change is to remove 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 added to the types of prohibited content.

• Intermediary Not To Be a Party to ‘Misinformation’

The erstwhile Rule 3(1)(b)(vi) (now Rule 3(1)(b)(v)) has been expanded and now 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 introduced requiring intermediaries to take responsibility to ensure accessibility of its services to users along with reasonable expectation of transparency, privacy, and due diligence.

• Intermediaries to Respect Constitutional Rights

A new Rule 3(1)(n) has been introduced which mandates 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).

• Changes in Grievance Redressal Mechanism

Intermediaries are now required to resolve grievances relating to prohibited content listed in Rule 3(1)(b) within 72 hours of receiving the complaint. However, this timeline does not apply to grievances relating to content that falls within the categories of: Rule 3(1)(b)(i) (information belonging to another person and to which the user does not have any right), Rule 3(1)(b)(iv) (information that infringes any intellectual or other proprietary rights), and Rule 3(1)(b)(ix) (information that violates any law for the time being in force), or any other grievance; the timelines for these grievances continue to be acknowledgment within 24 hours and disposal within 15 days from receipt. Additionally, there is a new obligation on intermediaries to develop mechanisms to avoid misuse of the grievance redressal mechanisms by users.

• Introduction of Grievance Appellate Committee

Users will now have an option to appeal the decisions of the grievance officer within 30 days of the receipt of an order of the grievance officer, with the ‘Grievance Appellate Committee’ (‘GAC’), to be established. Intermediaries are to be bound by the order of the GAC. Having said that, this mechanism does not preclude the user from approaching judicial courts separately for redressing their grievance.

Way Forward

According to a Press Release issued by MEITY, the amendments to the Intermediary Rules (‘Amendments’) are aimed at, amongst others, ensuring the accountability of social media and other intermediaries, and have been notified in the backdrop of complaints regarding the action / inaction on their part on user grievances regarding objectionable content or suspension of their accounts.

That said, there is limited guidance in the Amendments on the manner in which compliance with some of these obligations is expected. For instance, it is unclear 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 reasonable privacy of and transparency to its users and how breach of fundamental rights would be enforced against private parties performing non-sovereign functions.

While clarity is yet to emerge on some of the ambiguous provisions as discussed above, intermediaries are required to comply with the requirements provided under the Amendments with effect from October 28, 2022.