Enacted by MeitY in May 2021, the Intermediary Guidelines and Digital Media Ethics Code Rules 2021.sought to both protect ‘digital Indians’ from the harms of Big Tech intermediaries and regulate the work of online publishers....They have been challenged in nineteen separate cases across the country—with specific portions stayed by multiple High Courts. A common cause for concern: they exert a chilling effect on free speech in India.

(Republished from Medianama with permission)

The MeitY’s IT Rules can have a chilling effect on free speech online in India and risks the balkanization of the internet itself, say experts

By Aarathi Ganesan

With additional reporting by Anushka Jain. 

After being abruptly taken down on June 2nd, the draft amendments to the controversial IT Rules, 2021, were re-released with clarifications by the Ministry of Electronics and Information Technology (MeitY) for public comments on June 6th. The proposed Rules could potentially impact much more than Big Tech in India.

With the  supposed intent of putting the interests of ‘digital Indians’ first, the proposed amendments aim to ‘ensure that the Constitutional rights of Indian citizens are not contravened by any Big-tech Platform [sic].’ An important and categorical addendum to this preamble: the Rules ‘will not impact early stage or growth stage Indian companies or Startups.’ Among other things, they suggest that intermediaries strictly enforce user agreements and content moderation regulations—while allowing users to appeal potential takedowns of their information before an Executive-appointed Committee.

Why it matters: If legislated as is, the proposed IT Rules’ ambiguities could leave the futures of freedom of speech online and a gamut of Indian digital ‘intermediaries’ hanging in the balance. The amendments directing platforms to ‘cause’ users to comply with their rules and regulations could amount to a form of pre-censorship across India’s corner of the Internet—with platforms preemptively taking content down to comply with the law, causing chilling effects on free speech. All IT intermediaries in India dealing with grievance appeals may now find themselves at the mercy of the ‘adjudication’ of a State-appointed Committee.

Who the Rules apply to is a key aspect of the concerns surrounding them. A social media intermediary ‘primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.’ Under the IT Rules, 2021, a significant social media intermediary is a ‘social media intermediary having number of registered users in India above such threshold [50 lakh users].’ Significant social media intermediaries include the likes of Facebook, Twitter, WhatsApp, and other social media giants.  

‘The government in its press note says that they are trying to hold significant social media intermediaries accountable, but this [who the Rules apply to] is not clear,’ explains a policy executive working with technology companies in India. ‘There’s a lot of anxiety [for tech businesses] around the definition of intermediary [used in the rules].’

What Are the Concerns With the Definition of ‘Intermediaries’?

The concerns with the proposed Rules seem to stem from their ambiguous and expansive use of the term ‘intermediary’. Ultimately, whether you’ll be affected by them depends on whether you’re included in the intermediaries it accounts for—as is evidenced by two of the proposed amendments, which curb much more than Big Tech. This wide range of applicability could have chilling effects on free speech—and on the operations of intermediaries in India’s IT sector.

The proposed amendments to clauses (a) and (b) Rule 3(1) direct intermediaries, including significant intermediaries and social media intermediaries, to ensure strict compliance with their platform’s respective rules and regulations. To that end, they ‘cause the user’ to not post or transmit certain kinds of information online. Grievance Officers of the intermediary take decisions on whether a user’s action on the platform transgresses its policy mandate or not. 

Additionally, if a user disagrees with the Grievance Officer’s decision, they can appeal to a new body suggested by the draft Rules under Rule 3(3)—the Union government-appointed Grievance Appellate Committee (GAC). An alternative to approaching the Courts, the Committee governs user appeals arising from the decisions made by the Grievance Officer of an ‘intermediary’.

This ambiguity currently affects all entities classified as ‘intermediaries’ in India. ‘The phrasing of the proposal concerns “intermediaries”, which is an inclusive definition, legally speaking,’ clarifies Nehaa Chaudhari, Partner at Ikigai Law. ‘There are no explicit clarifications in the proposal that the Rules address only social media or significant social media intermediaries. So, they apply to all intermediaries as defined under the parent statute—the Information and Technology Act, 2000 (IT Act).’ 

Intermediaries were first defined in the IT Act, 2000, as ‘with respect to electronic records any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market-places and cybercafes.’

So, beyond significant and social media intermediaries, any intermediary in India falling under this expansive bracket is now likely to be affected by the Rules. ‘Given that the legal schemes under the IT Act and the Rules do not admit any distinction between intermediaries organised in India or abroad, these Rules will apply to all intermediaries providing services in India,’ adds Priyadarshi Banerjee, an Advocate practising at the Supreme Court on matters of Constitutional Law and Technology. 

‘It is important to remember that this language is identical to the original IT Rules, notified in February of 2021,’ notes Tanmay Singh, Senior Litigation Counsel at the Internet Freedom Foundation. ‘To that end, this is a conscious choice to expand the applicability of the Rules to all kinds of intermediaries, a stance that has never changed. The Rules aren’t just applicable to social media intermediaries—they will also end up being applicable to intermediaries like Airtel, Jio, and ACT. So, for example, the government cannot only direct the takedown of a social media account—it can also direct an Internet Service Provider to block users from accessing a specific website [under Rules 3(1)(d) and 3(1)(j) of the IT Rules, 2021]. It would be an incredible challenge for all kinds of intermediaries to implement these rules—given the volume of content they process.’ 

Additionally, if legislated, the Rules could also lead to excessive vigilance by intermediaries looking to comply with the law—leading to the potential pre-censorship of content across the Internet in India. Whether this may actually happen or not depends on further clarification from MeitY on how the Rules will be implemented.

Can the Rules Enable Pre-Censorship and Balkanisation of the Internet in India? 

The proposed amendment to Rule 3(1)(a) directs intermediaries to ensure user compliance with their user agreement, privacy policy, and rules and regulations. The amendment to Rule 3(1)(b) directs intermediaries to ensure users do not transmit certain types of content online—such as, among others, abusive material, unlawful material, material infringing copyright, or material affecting India’s security and friendly relations with other states. 

When read narrowly, ‘Rule 3(1)(a) may not strictly give rise to pre-censorship,’ argues Mr. Banerjee. ‘The amendment here only creates a legal obligation on an intermediary to ensure compliance with the platform’s agreements. Without this mandate, the agreements lose their teeth which could lead to the selective application of platform rules by intermediaries for different users.’

However, Mr. Banerjee argues that concerns arise when reading Rules 3(1)(a) and 3(1)(b) together. ‘By imposing an obligation on the intermediary to ‘cause the user’ not to upload certain types of information, it is implicit that the intermediary is in a position to discern the nature of the content—which is an adjudicatory decision.’ 

‘If the Rules expect intermediaries to proactively enforce their regulations to ensure user compliance, there’s definitely a risk that pre-censorship might take place,’ says Ms. Chaudhari. ‘The result may be that intermediaries would rather over comply with the IT Rules, and take down more content, in order to stay on the right side of the law.’

‘Pre-censorship may create a curated or edited Internet space for India,’ adds Mr. Banerjee. ‘Since content is uploaded globally and made available globally, stringencies which are not globally applicable shall compel Internet companies safeguarding themselves legally to create an Internet only for India. The Internet may be balkanised, which is not conducive to the internet economy and inimical to user interests.’

However, both Mr. Banerjee and Mr. Singh maintain that right now, it remains unclear if the Rules will enable pre-censorship or not. This depends on whether the Rules direct intermediaries to filter users’ content before they post it—or whether they are to simply enforce their content moderation rules once their content is published. ‘There’s no reason to assume that the Rule implies that intermediaries develop an automatic content filtering mechanism,’ says Mr. Singh. ‘A reasonable interpretation of the rules would be that if someone publishes a piece of content that violates regulations, the intermediary should have a mechanism to enforce the regulations and take it down. This requires clarification from the government. ’   

How Does Pre-Censorship Challenge the Safe Harbour Principle?

If the Rules are clarified to support pre-filtering of content, and thus pre-censorship, the safe harbour principle protecting intermediaries as platforms and not publishers of content could be compromised. Currently, under certain conditions, safe harbour is granted to intermediaries under Section 79 of the IT Act, 2000

Section 79(2)(b)(iii) of the IT Act states that an intermediary will enjoy safe harbour if it does not ‘select or modify the information contained in the transmission.’ Section 79(2)(c) states that the intermediary enjoys safe harbour if it abides by the provisions of the IT Act and other subsequent guidelines drafted by the Union. ‘Facially, the Rules indeed create a point of divergence between Section 79(2)(b)(iii) and 79(2)(c) of the IT Act,’ argues Mr. Banerjee. ‘In short, statutory safe harbour shall be diluted.’

‘There is a reimagination of safe harbour principles taking place with this draft,’ notes Ms. Chaudhari. ‘The legal grounding of the safe harbour principle is that intermediaries do not exercise control over the content on their platforms—which is where the Indian laws on the issue evolve from. After the Shreya Singhal v Union of India Judgment in 2015, the Supreme Court narrowly defined cases where the safe harbour principle could be lifted, to ensure legitimate content takedown requests were issued. Intermediaries would be legally bound to take down potentially harmful content on their platforms when they had “actual knowledge” of it, in the form of court or government orders directing them to do so. The proposed Rules 3(1)(a) and 3(1)(b) flip this precedent on its head—there’s no question of “actual knowledge”, as the Rules ask platforms to take content takedown requests into their own hands. This is actively defying the settled law of Shreya Singhal.’ Mr. Singh argues that the ‘proposed amendments inadvertently overturn a Supreme Court Judgment—which the government cannot do.’ 

This may result in more takedowns of users’ content, in order to toe the regulatory line. ‘In practice, while companies may screen more content as a result of the Rules, this could also affect users,’ says Ms. Chaudhari. ‘They may start screening themselves before using an intermediary service, in order to avoid future conflicts—fundamentally changing how they interact with a platform.’ 

This form of voluntary self-censoring operates as pre-censorship, argues Mr. Singh, which has a chilling effect on free speech. ‘This amounts to a restriction on the fundamental right to speech [guaranteed under Article 19 of the Constitution].’

Can the Grievance Appellate Committee Impact ‘Intermediaries’ in India?

The Union-appointed Grievance Appellate Committee (GAC), formed under Rule 3(3), acts as a forum to appeal decisions made by the Grievance Officers of intermediaries. It is an alternative to approaching the Courts for grievance redressal. Given the current wording of the Rules, it oversees all intermediaries as defined under the IT Act, 2000. 

Ms. Chaudhari remains suspect about the legality of the body. ‘Substantive legal changes, such as the creation of such a committee, need to happen under the parent legislation, [that is, the] IT Act, 2000. They cannot be enacted through subsidiary rules like the IT Rules 2021. In any case, there is no text in the Rules on the nature of the Committee itself—on how it will redress complaints, on transparency, or on the procedure. So, in its current form, the GAC has a substantive impact on a user’s Fundamental Rights, without elaborating on [procedure or] how it may impact them.’

Ms. Chaudhari adds that the Committee has no independent members—a complaint against the body echoed by many intermediaries in India, concerned with the Union-appointed committee’s ‘potential biases in decision-making’. 

Can the GAC Impact Free Speech and Users’ Experiences of the Internet in India?

Mr. Singh points towards how the existence of the Committee may impact how intermediaries shape users’ experience of the Internet. ‘Looking at the literal text [of the proposed amendments], it seems as if any intermediary is now subject to the GAC,’ he says. ‘This makes intermediaries responsible for monitoring the entirety of the Internet—every single thing posted on any intermediary can be appealed. For example, somebody can complain to Airtel about a user’s actions on its intermediary services. The scale of this monitoring is unthinkable. Facebook and Twitter receive millions of complaints just for content posted on their websites—imagine what Internet Service Providers may have to deal with, as they service the entirety of the Internet.’

‘Ultimately, this also becomes a free speech issue,’ concludes Mr. Singh. ‘The GAC, a Union-appointed body, becomes one of the bodies with the final say on what is permissible online or not.’ Amendments to Rules 3(1)(m) and 3(1)(n) also include a mandate that intermediaries respect the users’ Fundamental Rights—which may be cited during an appeal at the GAC. ‘You might have a situation where the Executive is interpreting the law at the GAC,’ says the policy executive. ‘This is the function of the Judiciary. The GAC creates a case for discretionary Executive power [over the Internet in India].’

The policy executive adds that the GAC could also harm the interests of smaller digital intermediaries in India, especially in the realm of intermediary-enabled e-commerce. ‘Suppose two businesses use the same intermediary, which could be a social media or instant-messaging platform, to sell their goods,’ they explain. ‘It is plausible that one larger competitor may make frivolous complaints about the other smaller business’s actions on the platform, to harm their business interests. These can be eventually appealed at the GAC. The host intermediary platform may become concerned about potential action from the GAC—and be incentivised to err on the side of caution and ban smaller competitors based on these complaints.’ 

How Do Other Amendments to the Rules Impact Online Speech and IT Companies in India?

Proposed amendments to Rule 3(2) of the IT Rules direct Grievance Officers to expeditiously dispose of complaints under Rule 3(1)(b) within 72 hours of receiving them. This is ostensibly introduced to ensure that potentially inflammatory content does not stay on the platform for too long—if it does, it may go viral, which in India, can have deadly consequences. Currently, intermediaries are to acknowledge complaints within 24 hours and dispose of them within 15 days.

However, in reality, this could amount to the thoughtless closing of complaints by intermediaries looking to comply with a tight timeframe—which can once again impact free speech online. It could also impact the longevity of business operations in India. ‘The reduction in timelines for disposing of complaints coincides with the reduced timelines for reporting cybersecurity incidents under the CERT-IN guidelines,’ says the policy executive. ‘The costs of complying with both these requirements will absolutely crush many Indian start-ups. This is especially the case for those that are cash strapped, or do not have the staff or processes to comply with these regulations.’

Additionally, despite social media and significant social media intermediaries’ efforts to maintain objectivity in cases of alleged user violations, content moderation by intermediaries can often be shaped by the dominant political discourse, business interests, and personal biases.

This isn’t mere conjecture. In October 2020, Facebook itself updated its content policy to take ‘down content which isn’t necessarily unlawful, just so that it can avoid legal or regulatory scrutiny.’ As MediaNama reported, this could lead Facebook to ‘possibly make decisions out of its own biases and business interests.’ To add proof to the pudding, a Wall Street Journal exposé from a few months earlier in 2020 revealed that Facebook refused to take down ‘hateful content’ on Muslims posted by politicians of the ruling Bharatiya Janata Party (BJP), in order to preserve its business interests in the country. The decision was reportedly spearheaded by the former head of Public Policy at Facebook India, Ankhi Das—who was also allegedly a supporter of the ruling government.

That social media and significant social media intermediaries in India may lean toward pre-censorship as the path of least resistance is unsurprising—non-compliance with the IT Rules can be more trouble than its worth for intermediaries.

Take the case of Twitter India— in July last year, it had temporarily lost the immunity conferred to intermediaries under Section 79 of the IT Act for its prolonged ‘non-compliance’ with the IT Rules. The Union was vocal in its disapproval, with former Union Minister for Electronics and Information Technology Ravi Shankar Prasad somewhat ironically tweeting that ‘it is astounding that Twitter which portrays itself as the flag bearer of free speech, chooses the path of deliberate defiance when it comes to the Intermediary Guidelines.’ Finally, after much negative publicity and back and forth with the Courts, Twitter India became compliant with the IT Rules in September 2021.

What Are the Future Prospects of the Proposal?

Intermediaries in India’s IT sector are likely to seek clarifications from MeitY. ‘We are requesting an extension on the final date [for submitting comments],’ says the policy executive. ‘There’s a lot of legal and policy discourse that needs to happen with regards to the timelines and Grievance Appellate Committee’s constitution and operations. The press note [released with the draft Rules on June 6th] says that Indian start-ups will not be impacted by them. But, there is nothing in the letter of the law that says anything like that. This will have to be expanded upon by the government.’

Regarding the concerns surrounding Rule 3(1)(b), Mr. Banerjee argues that  ‘if a proposed amendment from its inception creates difficulties in interpreting and harmonising the legal regime, it ought to be redrafted to avoid such unnecessary and unintended consequences.’

Regarding the GAC, Ms. Chaudhuri suggests alternative approaches to grievance redressal from around the world that can offer more structural clarity to intermediaries. ‘The United Kingdom’s proposed Online Safety Bill lays out the procedures for grievance redressal clearly.’

For Mr. Singh, ultimately, the best way for intermediaries to tackle the realities of concerning speech online is to develop in-house moderation systems—as opposed to being directed to do so in specific ways by the government. ‘This is not a social media intermediary versus the government problem,’ he argues. ‘This is a people versus social media intermediary and people versus government problem. You need to protect the people from both social media intermediaries and the government—that’s the exact reason why Fundamental Rights exist. We need to move towards systems that strengthen these principles.’

Why Were the IT Rules, 2021 Controversial?

Enacted by MeitY in May 2021, the ‘Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021’ sought to both protect ‘digital Indians’ from the harms of Big Tech intermediaries and regulate the work of online publishers. This was to be achieved through heightened grievance redressal mechanisms for users concerned by specific kinds of speech online. 

However, the Rules have been embroiled in controversy since May 2021. They have been challenged in nineteen separate cases across the country—with specific portions stayed by multiple High Courts. A common cause for concern: they exert a chilling effect on free speech in India. 

In July 2021, the Union filed a transfer petition at the Supreme Court seeking the transfer of four pending High Court challenges to the rules governing digital publishers. It also sought that the Bench stay pending proceedings at High Courts. On May 9th, 2022, the Supreme Court issued notice in the matter. It agreed to stay the proceedings before the High Courts, but refused to stay any Interim Orders passed by them. On May 18th, the Court directed the matter to be heard next in late July.

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