New Amendments to India’s Guidelines for Intermediaries: An Update

INTRODUCTION

In February 2021, India’s Ministry of Electronics and Information Technology (“MeitY”) released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Guidelines”), issued under the Information Technology Act, 2000 (“IT Act”). Under this framework, an intermediary – a term that includes social media companies, internet service providers, cloud service providers, telecom service providers, and e-commerce platforms – must comply with the Guidelines’ prescriptions to avail safe harbour provisions under the IT Act.

On June 6, 2022, MeitY released a press note (“Press Note”) that sought public feedback on its proposal to amend the Guidelines to provide additional avenues for grievance redressal and to protect Indian citizens’ constitutional rights from infringement by big-tech platforms by putting in place new accountability standards for significant social media intermediaries.

The proposed amendments were notified with minor changes on October 29, 2022 as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“Amendment Rules”).  

Key Changes

1. Policies and communication in local languages: The Guidelines required intermediaries to prominently publish their terms of use and privacy policy on its website and mobile applications. Considering India’s linguistic diversity, the Amendment Rules require intermediaries to make these terms and policy available in English or any other Indian national language. Notably, the Amendment Rules do not mandate intermediaries to publish policies and communicate with users in Indian languages, but we expect this option to be a first step towards accessibility for a large userbase that does not use English.
   
2. Due diligence obligations: Under the Guidelines, an intermediary’s terms of use were to inform users of the manner in which its services were to be used, and restrictions in this regard. The Amendment Rules go a step further and require intermediaries to make reasonable efforts to ensure that their users do not use their services in a manner restricted by the Guidelines. Typically, intermediaries require users to agree to terms that set out restrictions, thereby binding them contractually. At this stage, it is unclear whether internet platforms will be required to implement additional tools or measures to comply with this requirement.
   
   The Amendment Rules tighten intermediaries’ due diligence obligations. With a focus on tackling hate speech, intermediaries are required to use reasonable efforts to cause users not to use their services to upload or share any information that “promotes enmity between different groups on the grounds of religion or caste with the intent to incite violence”.
   
3. Principles of accessibility, due diligence, privacy, and transparency: The Amendment Rules reiterate the principles by which an intermediary must operate in India. They notably require intermediaries to use reasonable efforts to ensure accessibility of their services. While accessibility measures are presently undefined, we expect further guidance from MeitY.
   
   While intermediaries are generally obligated to comply with applicable law, the Amendment Rules clarify that they must respect Indian citizens’ constitutional rights, especially the fundamental rights to equality, free speech, association, and life and liberty. Though fundamental rights are only enforceable against the state and its agencies, it appears that the Central Government intends to seek intermediaries’ cooperation in this regard. 
   
4. Reduced timelines for content take-down requests: The Guidelines required intermediaries to acknowledge grievances within 24 hours and resolve them in 15 days. The Amendment Rules go a step farther and reduce the time period for resolution of content takedown requests to a maximum of 72 hours, to prevent malicious or non-compliant content from spreading.
   
   The Amendment Rules also allow intermediaries to develop appropriate safeguards to avoid users’ misuse of such grievance redressal mechanism. The Amendment Rules remain silent on the practicalities of such safeguards, and we expect further guidance from MeitY.
   
5. Grievance Appellate Committee: The Amendment Rules require the establishment of one or more government-appointed 3-member Grievance Appellate Committees within 3 months from the date of notification of the Amendment Rules. Any person aggrieved by a decision of an intermediary’s grievance officer may appeal to the Grievance Appellate Committee within 30 days of such decision. The Grievance Appellate Committee is required to deal with such appeal expeditiously and endeavour to finally resolve it within 30 calendar days. In order to ensure speedy redressal and reduce the burden on courts, the Grievance Appellate Committee is to adopt an online dispute resolution mechanism.
   
   The Amendment Rules specify that every order passed by the Grievance Appellate Committee will be binding on the intermediary concerned, and intermediaries must upload a report of their compliance with such orders on their websites. However, the Amendment Rules remain silent on an intermediary’s recourse rights against decisions of the Grievance Appellate Committees.

Way Forward

The Amendment Rules allow intermediaries to publish policies and communicate with users in Indian national languages, which is likely to boost local-language centric intermediaries.

To curb the rising issue of hate speech, especially on social media platforms, the Amendment Rules require intermediaries to act swiftly on content take-down requests. As the Amendment Rules came into force immediately upon notification, intermediaries will accordingly need to upgrade their internal grievance redressal processes. That said, the establishment of the Grievance Appellate Committees and the lack of clarity on intermediaries’ rights and recourse against the Grievance Appellate Committee’s decisions are bound to attract controversy, and we expect further updates within this space.  

Please reach out to Mathew Chacko and Aadya Misra for queries.