Home / Opinion / Views /  Amendment proposals for IT rules miss the main point

Last year, India’s ministry of electronics and information technology (MeitY) and the ministry of information and broadcasting (MIB) had tried to establish an inter-ministerial appellate body above digital news publications and over-the-top (OTT) platforms. This committee could modify or delete content, as it deemed fit. The Bombay and Madras high courts noted that such an oversight mechanism threatens media independence, and ordered a stay on the operation of this panel. Now, through a proposed amendment to the 2021 IT Rules, MeitY wants to establish a body above social media platforms, which has a similar effect in that it will be able to decide what kind of speech stays up on the internet, what must be taken down, and what gets reinstated. The amendments also seek to impose additional obligations on social media platforms.

A Grievance Appellate Committee (GAC), will act as an oversight mechanism for grievance redressal officers, who were required to be appointed by social media platforms under the 2021 rules. These have proven controversial and their constitutional validity was challenged before several high courts. It is in this context that the Bombay and Madras high courts stayed the operation of parts that sought to establish an oversight mechanism over digital news publishers and OTT platforms, warning that it may “rob the media of its independence". Even if MeitY can’t refer complaints directly to the panel, the appeal process could deliver a similar outcome.

Why then does the ministry believe that this GAC is constitutionally sound? It also seeks to create one without legislative backing, since the amendments will be made by the ministry to its own rules, not by Parliament to a statutory law. In a democracy like India’s, the executive does not have the power to create bodies such as the GAC, which can have an immediate and far-reaching impact on citizens’ fundamental rights, with little to no procedural safeguards built into the scheme of the rules.

In addition to constitutionality issues, a GAC is not reflective of sound policymaking either. It is indicative of an approach to content moderation that is neither suitable nor capable of scaling to meet the many challenges in today’s information ecosystem. It relies on decisions taken about individual pieces of content to address systemic issues that are caused by broader societal-level problems to produce what Evelyn Douek, lecturer at Harvard Law School, calls ‘accountability theatre’. Mere aggregation of individual decisions won’t be able address underlying problems since they are neither repeatable nor broadly applicable, given the complexities involved.

Meanwhile, the potential lack of scalability can be demonstrated with some numbers. A popular Indian social media platform reported that it received about 7 million user complaints in March 2022. Even if around 1% of these make it to the GAC, the panel may need to deal with at least tens of thousands of appeals a month. This number could be much higher once other social media platforms are taken into account and more people seek to exercise this option, whether in good faith or bad. It is neither desirable nor advisable for this committee to attempt to operate at such a scale. Attempts by the executive to insert itself directly into content moderation decisions are also unlikely to have unbiased outcomes.

These amendments also introduce a new requirement for social media platforms. So far, they were only required to inform their users, among other things, about the kind of content they could not host, display, publish, etc. An amended clause requires that these platforms “shall cause" their users not do so. It remains unclear how intermediaries are to comply with these obligations and whether it will translate into ‘general monitoring obligations’ where they will have to proactively scan all content. This could disproportionately affect ‘politically inconvenient’ speech.

Social media platforms may risk losing their intermediary protection under the Information Technology Act if they fail to comply with MeitY’s or the GAC’s directions and are found to have fallen short of their obligations by a court. Intermediary protections are necessary since millions of individual pieces of speech content are generated on many platforms in a variety of contextually different ways every day, making it extremely difficult for them to exercise complete control over what users choose to say or do on their platforms without also generating adverse outcomes. These protections allow platforms to only respond to government orders or court directions for removal of content. This model is globally recognized and was even set out by the Supreme Court in its Shreya Singhal judgement. The proposed amendments seek to overturn years of jurisprudence on intermediary protections as well as a Supreme Court ruling. This is not permissible under the constitutional scheme of India.

Other than a sub-rule that states social media platforms must respect the constitutional rights of Indians, which does not appear to be practically or judicially enforceable, the latest proposals have missed an opportunity to improve upon a delegated piece of legislation that was widely criticized by stakeholders, activists, journalists, artists and the general public. The government must not just take the proposed amendments back, but also repeal the 2021 IT Rules in their entirety and hold fresh consultations with civil society and other stakeholders with a view to put the people, not itself, first.

Prateek Waghre & Tanmay Singh are, respectively, policy director and senior litigation counsel at the Internet Freedom Foundation

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