The story so far: On June 2, the Ministry of Electronics and Information Technology (MeitY) put out a draft proposal, seeking comments from the general public on a set of proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The draft document was however withdrawn the same day with a revised version expected to be made available this week. It had proposed measures to strengthen the oversight mechanism for regulating content on social media platforms. The draft stated that the measures dealt with “new and emerging issues” and addresses identified “gaps” in the legislation so as to make the internet more open, safe, trusted and accountable to its users.
Broadly, the IT Rules (2021) mandate social media platforms to exercise greater diligence with respect to the content on their platforms. They are required to establish a grievance redressal mechanism, and remove unlawful and unfitting content within stipulated time frames.
The grievance officer of the platform’s redressal mechanism is responsible for receiving and resolving complaints of the users. She/he is expected to acknowledge receipt of the complaint within 24 hours and dispose the same in an appropraite manner within 15 days. Content portraying an individual in full or partial nudity, in a sexual act or impersonating some other individual in the act (using morphed photos) are required to be removed within 24 hours of receiving the complaint. Its access and spread by any other means on the platform should also be disabled. Other than this, the privacy policies of the social media platforms must ensure that users are educated about not circulating copyrighted material and anything that can be construed as defamatory, racially or ethnically objectionable, paedophilic, threatening the unity, integrity, defence, security or sovereignty of India or friendly relations with foreign states, or generally violative of any contemporary law.
The draft proposed an additional level of oversight, namely, the ‘Grievance Appellate Committee’, functioning over and above the intermediary’s grievance redressal officer. Broadly, in case a user is not satisfied with the resolution provided by the intermediary, she/he can appeal against the decision at the appellate rather than going directly to court. However, this did not take away the user’s right to appeal in any other court. The draft stipulated that all orders of this appellate must be complied with. The suggested question on ‘oversight’ stemmed from the fact that the appellate was to be constituted by the Central Govt — empowered to appoint the Chairperson and other members.
Digital advocacy group, Internet Freedom Foundation (IFF) said that “worryingly, this would have made the government the arbiter of permissible speech on the internet and incentivised social media platforms to suppress any speech that may not be palatable to the government.”
Additionally, the draft put forth the obligation that all social media intermediaries resolve all complaints within 72 hours of reporting. Intermediaries are known to invest sizeable time in thoroughly scrutinising and determining the content and user accounts they are called to censor. For example, Twitter took two-three days to censor former U.S. President Donald Trump’s account following a close review of his tweets and their context, particularly in light of the January 6 violence at the White House, the previous year. The shortened timelines therefore invited fears of a hastier approach to get things done. “Such a short-time line would have created the possibility of disposal of grievances without application of mind and led to arbitrary restriction on speech,” the IFF states.
What needs to be remembered is that all social media platforms deal with a sizeable user base and an even more massive content flow. For example, between March 25 and April 26 this year, Twitter acted against a total of 1,494 URLs for violating varied community standards. In addition, it processed 108 grievances seeking account suspensions and overturned 52 account suspensions during the mentioned period. Even if a miniscule fraction of these people were to approach the appellate, both the microblogging platform and the committee could be potentially burdened. Not to forget, the data is for a month-long period and for a single entity, and such occurrences are recurrent and could only multiply the case count. Further, a sub-clause suggested the appellate dispose such cases within thirty days furthering the probability for hasty decisions.
Both Bombay and Madras High Courts stayed the imposition of sub-clauses 1 and 3 of Rule 9 of the legislative guidelines in August and September of the previous year, respectively. The two sub-clauses dealt with the ‘Code of Ethics’ for online publishers dealing with news and current affairs content and/or curated content. The sub-clauses had stated that the entities subscribe to a three-tier mechanism in dealing with grievances (relevant to their platform) so as to adhere to their code. This entails self-regulation by the publishers (level I), by self-regulating bodies of the publishers (level II) and finally, an oversight mechanism by the Central Govt (level III).
When argued at the Bombay High Court in August 2021, Additional Solicitor General Anil Singh mentioned that 97% publishers of news and current affairs had not challenged the 2021 Rules and thus the provisions are accepted and implemented.
The Bombay High Court however ruled, “People would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the Code of Ethics hanging over their head as the Sword of Damocles.” The Supreme Court will now hear this matter on July 19.