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New Rules For Social Media Intermediaries Vague, Will Result In Over-Censorship, Experts Say

The new rules require intermediaries to "respect" Constitutional rights which are traditionally enforceable only against the State

<div class="paragraphs"><p>(Source: BQ Prime)</p></div>
(Source: BQ Prime)

Social media platforms like Twitter, Facebook, Instagram are facing fresh requirements under India's less than two-year-old rules for intermediaries.

Grievance appellate committees, reduced timelines for vetting content, and communicating privacy policy, user agreement to consumers in Indian local languages are among the key changes made to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

The Ministry of Electronics & Information Technology notified the revised IT Amendment Rules, 2022 on Friday, which-

  • Provide for Grievance Appellate Committees to hear complaints from users against content moderation decisions of social media platforms. The committee members will be appointed by the central government, and will consist of a chairperson and two independent whole-time members.

  • Mandate social media intermediaries to publish on their website or mobile apps their rules, regulations, privacy policy, user agreement in English or any other Indian language.

  • Remove specified objectionable content, which is defamatory, obscene, ethnically objectionable, harmful to children, patently false etc, within 72 hours versus the 15 days period provided earlier.

BQ Prime spoke with experts on the implications of the amended rules on social media intermediaries, users, and their right to free speech.

Some Changes Will Result In "Over-censorship" Of Content By Intermediaries

Supratim Chakraborty, Partner, Khaitan & Co.

One of the foremost challenges as a result of this new amendment is that intermediaries are under an obligation to resolve a wide scope of content- related grievances within a mere span of 72 hours.

Earlier, they had up to 15 days to resolve such grievances. This may lead to a possibility where intermediaries are unable to vet content-related complaints properly and merely resort to taking down all content for which complaints are received.

"In addition to being a significant compliance burden, this may result in over-censorship of content by intermediaries, thereby affecting free speech and expression."

An alternative approach could have been to provide reduced timelines for serious content norm violations, such as content deemed harmful for children.

The amendment also makes way for establishment of grievance appellate committees in the context of complaints received by intermediaries.

This is a welcome move and may significantly reduce burden on courts. However, if such appellate procedure introduced under the amendment is only an alternative and not mandatory process of grievance redressal, it will only lead to multiplicity of proceedings.
Supratim Chakraborty, Partner, Khaitan & Co.

Further clarity is required on this.

The requirement to publish rules, privacy policy, terms of user agreement in local Indian languages appears to be quite a novel change. However, this could prove to be a challenge for several intermediaries, especially smaller businesses who may not have adequate resources to comply with such obligation. Translated versions may not always be accurate, unless done by professionals.

Further, intermediaries are to ensure accessibility of their services for users. However, the term ‘accessibility’ can be interpreted in multiple ways.

For instance, accessibility may be interpreted in the context of making services available and accessible by specially abled persons. It can also be understood as ensuring uptime and availability of the intermediaries’ platforms and services, without any hindrance.

Hence, the exact nature of the obligation remains unclear.

Intermediaries Now Required To "Respect" Constitutional Rights  

Vaibhav Kakkar, Partner, Saraf & Partners

The amendments bring about a significant shift in how platforms are regulated. While the key impact most people will note is on social media intermediaries, we must remember this applies across the board to all intermediaries.

It brings in a recourse to grievance redressal that is not available under other laws. For example, many of these intermediaries offer 'free' services to a user that may not trigger the applicability of the consumer protection law.
Vaibhav Kakkar, Partner, Saraf & Partners

Unfortunately, the amendments do not provide the level of detail required for smooth implementation and realization of its objectives. The qualifications required for being members of the committee are absent. Nor do they clarify who could be the independent members. The variation required in dealing with different types of grievances such as social media, e-commerce, payments, web hosting etc are absent.

There's another important amendment which says the intermediary shall respect all the rights accorded to the citizens under the Constitution, including in the Articles 14, 19 and 21.

The key challenge is in implementing 'respect' for rights accorded to citizens under the Constitution, many of which are traditionally enforceable only against the State.
Vaibhav Kakkar, Partner, Saraf & Partners

Lastly, and most importantly this brings the State into content moderation decisions of social media platforms. One can expect litigation to iron out some of these issues.

This Shows Government Will Bring In "New Regulatory Bodies Bypassing The Parliament"

Raman Chima, Asia Policy Director, Access Now

The government's move in notifying these amendments unfortunately shows that they do not take the concerns of Indian users and the public interest seriously. Instead of fixing the many problems in the 2021 IT rules impacting privacy and free expression - and the lack of parliamentary authority for these moves - the government has gone ahead and notified these changes which the majority of stakeholders have raised significant concerns on.

The government has shown that it will bring in new regulatory bodies for social media bypassing Parliament - but appears afraid to fix the many problems it has created by its own, rights-harming rules.

The Appellate Body Should Have A Judicial Member

Rahul Goel, Partner, Anant Law

Setting up of appellate panels to address grievances that users may have against the decisions of social media platforms on hosting contentious content is a welcome step.

This amendment creates a legal ground to challenge any decision by social media platforms and creates a legal structure.

It seeks to cover a wide range of complaints which would include fake news, nudity, trademark infringement, objectionable religious content, basically everything that could cause a threat to the sovereignty, unity and peace of the country.
Rahul Goel, Partner, Anant Law

The questions that arise and seem unanswered at this point are how will the appellate body determine a particular post falls under the said criterion as views posted on social media platforms are highly subjective. There seems to be a need for objective criterion to determine whether the post can be taken down. Also, if an authority is to ensure legal rights of an individual especially the fundamental rights, presence of a judicial member would become necessary.

The Ongoing Battle Of Wills Set To Intensify

Anupam Shukla, Partner, Pioneer Legal

The government’s decision to not rely on social media intermediaries to self-regulate will have far-reaching consequences. The Grievance Appellate Committee may prove useful in cases where a quick redressal is sought by an aggrieved user of the platform, for example, cyber bulling, online harassment, revenge porn, etc.

"But if used indiscriminately, it may also end up stifling free speech by moderating content on grounds that it threatens the sovereignty and integrity of the nation or is objectionable to religions. Unfortunately, these are not well-defined parameters and will depend on the judgement of the committee."

The grievance officers of the social media intermediaries now have significant responsibilities on account of the strict timelines for compliance which have been specified in the rules.

This move is also aimed at squarely reducing the autonomy of tech companies. The Committee is empowered to insist on the reversal of the decisions by the tech platforms to ban individuals contravening their internal community standards.
Anupam Shukla, Partner, Pioneer Legal

This may intensify the ongoing battle of wills between the social media platforms and the state.

As the government is already considering a complete overhaul of the laws governing digital space in India, it would have been better if the principal legislation had been introduced first before trying to streamline the rules for specific cases.