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The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022: Key Amendments

LexOrbis India


  1. INTRODUCTION

 

On October 28, 2022, the Ministry of Electronics and Information Technology (“MEITY”) notified [1] the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“Amendment Rules,”). The amendment rules provide changes to certain provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Rules”),

 

MEITY introduced the Amendment Rules on the following principles by press note dated June 6th, 2022:

 

(a)The internet should be open, safe & trusted and accountable for all Indians using the internet.

(b) That all online intermediaries providing services in India shall never contravene the Indian constitution, laws and rules, and follow them in letter and spirit.

(c) Unlawful and harmful information violative of their own terms and conditions shall be quickly removed when reported by users, while also providing the users a reasonable opportunity to respond in case of significant social media platforms.

(d) The Intermediary Rules provide for a robust grievance redressal mechanism. However, there have been many instances that grievance officers of intermediaries either do not address the grievances satisfactorily and/or fairly. Thus, the need for an appellate forum has been proposed to protect the rights and interests of users,

 

Consequently, on this backdrop, with the Amendment Rules MEITY imposed additional obligations on intermediaries[2] and introduction of Grievance Appellate Committee.

 

 

  1. KEY AMENDMENTS INTRODUCED

 

 The key amendments introduced by the Amendment Rules are:

 

  1. Publication of, privacy policy and user agreements:

 

The Amendment Rules amends Rule 3(1)(a) of the Intermediary Rules. As per the Amendment Rules, the intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the rules and regulations, privacy policy and user agreement in English or any language specified in the Eighth Schedule to the Constitution for access or usage of its computer resource by any person in the language of his choice and ensure compliance of the same.

 

Comments: Intermediaries are now required to publish their platform rules and regulations, privacy policies and user agreements in a user's preferred language, which may be English or one of the 22 languages specified in the Eighth Schedule to the Constitution of India (Regional Languages) as per the user's choice.

 

  1. Obligation on intermediaries to take 'reasonable efforts' to prevent prohibited content:

 

The Amendment Rules amends Rule 3(1)(b) of the Intermediary Rules. As per the Amendment Rules, the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that:

  1. belongs to another person and to which the user does not have any right;
  2. is obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;
  3. is harmful to child;
  4. infringes any patent, trademark, copyright or other proprietary rights;
  5.  deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature;
  6. impersonates another person;
  7. threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence, or prevents investigation of any offence, or is insulting other nation;
  8. contains software virus or any other computer code, file or program designed to interrupt, destroy or limit the functionality of any computer resource;
  9. violates any law for the time being in force.

 

    

      Further, Rules 3(1)(f) of the Intermediary Rules has also been amended requiring the intermediary to periodically and at least once in a year, inform its users in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice of its rules and regulations, privacy policy or user agreement or any change in the rules and regulations, privacy policy or user agreement.

     

     Comments: The Amendment Rules imposes a legal obligation on intermediaries to inform users of the prohibited content in a user's preferred language, which may be English or one of the 22 languages specified in the Eighth Schedule to the Constitution of India (Regional Languages) as per the user's choice. The Amendment Rules further imposes a legal obligation on intermediaries to take reasonable efforts to prevent users from uploading such specified prohibited content.  In addition, the intermediary is required to inform the users periodically or at least once in a year its rules and regulations, privacy policy or user agreement or any change in the rules and regulations, privacy policy or user agreement.

 

  1.  Accessibility of services to users

 

      The Amendment Rule provides a new Rule 3(1)(m) requiring intermediaries to take responsibility to ensure accessibility of its services to users along with reasonable expectation of transparency, privacy, and due diligence.

 

  1. Constitutional Rights:  Rule 3(1)(n) has been introduced by the Amendment Rules that provides that the intermediary shall respect all the rights accorded to the citizens under the Constitution, including in the articles 14, 19 and 21.

 

       Comments: The provision mandates that intermediaries must respect the constitutional rights guaranteed to citizens, including the fundamental rights guaranteed under Articles 14 (equality before the law), 19 (right to freedom) and 21 (protection of life and personal liberty) of the Constitution.

 

  1. Acknowledgement and resolution of complaints

 

       Rule 3(2)(b) (a) (i) of the Intermediary Rules has been amended and provides that intermediaries are required acknowledge the complaints within twenty-four hours and resolve such complaint within a period of fifteen days from the date of its receipt: Provided the complaint in the nature of request for removal of information or communication link relating clause (b) of sub-rule (1) of rule 3, except sub-clauses (i), (iv) and (ix), shall be acted upon as expeditiously as possible and shall be resolved within seventy-two hours of such reporting. The Amendment Rules also contains a proviso whereby intermediaries are required to develop mechanisms to avoid misuse of the grievance redressal mechanisms by users.

 

       Comments: The exceptions for resolution of complaints within 72 hours mentioned above 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.  Given the reduction in timelines, intermediaries will have to put in place additional measures to proactively handle such complaints within a 72 hours’ time period.

 

  1. Grievance Appellate Committee

 

    The Amendment Rules introduces a new provision 3A. Accordingly, the Central Government shall, by notification, establish one or more Grievance Appellate Committees within three months from the date of commencement of the Information Amendment Rules. Any person aggrieved by a decision of the Grievance Officer may appeal to the Grievance Appellate Committee within a period of thirty days from the date of receipt of the communication from the Grievance Officer.

 

III. Conclusion: Since the Amendment Rules imposes additional compliance obligations for intermediaries, intermediaries will have to ensure that that they comply with the additional compliances in order to provide a safe, trusted and accountable internet space. The grievance Officers will have to address the grievances as per the time period prescribed in the Amendment Rules. In addition, the introduction of the Grievance Appellate Committees is a positive step for protection of the rights and interests of users.

 

[1] G.S.R. 794(E), dated 28th October 2022.

[2] The term 'Intermediary' has been defined in Section 2(1) (w) of the Information Technology Act, 2000 as "any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes".

 

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