Govt may stick to social media oversight in new rules
The Union government is set to push through with setting up committees that will have the final say on what social media content stays up or is taken down, documents accessed by HT show, with an amendment to IT Rules, 2021 putting this into effect soon.
The Union government is set to push through with setting up committees that will have the final say on what social media content stays up or is taken down, documents accessed by HT show, with an amendment to IT Rules, 2021 putting this into effect soon.
First unveiled in June as a draft notification seeking public feedback, the proposal attracted criticism from civil liberties activists who said that a grievance redressal committee, as envisaged by the Centre, would give the government the final say on online speech.
A new version, taking into account public feedback, retains the broad concept, but adds that there will be multiple grievance committees instead of one, and gives intermediaries room to make “reasonable efforts” to ensure users do not post unlawful content.
“The Central Government shall, by notification, establish one or more Grievance Appellate Committees within three months from the date of commencement of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022,” stated the new draft document, which HT has seen. “Each Grievance Appellate Committee shall consist of a chairperson and two whole time members appointed by the Central Government, of which one shall be a member ex-officio and two shall be independent members.”
The new amendments mooted, among several changes, the forming of multiple Grievance Appellate Committees headed by government-appointed functionaries to hear appeals by people against decisions taken by social media companies.
Policing of online content has been a matter of contention between the government and social media companies, with the latter till now having the exclusive power to remove items that fall afoul of their policies. But if the grievance panels are set up, it will be mandatory, as per the planned amendments to the IT rules, for them to follow directions by government-appointed members, shifting the power to the state.
It was not immediately clear why the government wants multiple grievance redressal bodies, and whether their functions will be divided across different kinds of complaints.
“There could be several complaints that need to be addressed, which is why multiple redressal bodies may be needed,” an official familiar with the matter said. “It is likely that the government will be flooded with complaints, so this is move to prevent that.”
Defending its objectives as being meant to create a “safe, open and accountable and trusted internet”, the government has maintained that intermediaries should be accountable in case people are not satisfied with the response.
Once the amendments are notified, although the rules themselves have been stayed by multiple high courts, social media companies could stare at different timelines for when they will need to act based on the sort of violation being reported.
For instance, action must be taken within 72 hours in case the unlawful content relates to invasion of privacy, hate speech, misinformation, or any content that threatens law and order or integrity of the state. For a handful of other violations, such as copyright and trademark infringement and the violation of any other laws not identified explicitly, the deadline will be 15 days. For content that is classified as child sexual abuse material or “outraging the modesty of a woman”, the deadline will be 24 hours.
Any person who does not agree with a decision of a social media company may appeal to the Grievance Appellate Committee within thirty days from the date of receipt of communication from the Grievance Officer. “The Grievance Appellate Committee shall deal with such appeal expeditiously and shall make an endeavour to resolve the appeal finally within thirty calendar days from the date of receipt of the appeal,” the document stated.
It elaborates that an intermediary shall “the intermediary shall respect all the rights accorded to the citizens under the Constitution, including in the articles 14 (right to equality), 19 (freedom of speech) and 21 (freedom from discrimination on the basis of caste, color, creed, gender, ethnicity)”.
Several international and domestic industry bodies that represent social media companies such as Facebook, Twitter and WhatApp have pushed back against the government’ proposal to set up an appeals body to review content takedown.
The Federation of Indian Chambers & Commerce of Industry (Ficci), in its recommendations, said in its feedback during the public consultation process that the guidelines appear to impose an “obligation” on intermediaries to proactively ensure compliance of its terms and conditions and are ultra vires Section 79 of the Information Technology Act.
“Not only do the proposed amendments direct intermediaries to mandatorily comply with the orders of the government-appointed GAC, but there is also no information on the manner in which accountability will be ensured in its functioning, which can potentially lead to infringement of fundamental right to freedom of speech and expression,” it added.
Experts flagged three specific aspects with the rules that need attention.
“Intermediaries have been placed with higher responsibility and liability with the proposed amendments and a critical addition is of the requirement to meet reasonable expectations of privacy and transparency. This provision militates against dilution of user rights through ex post facto modifications to terms,” said cyber law expert and Supreme Court lawyer NS Nappinai.
Second, “whilst an additional layer of takedown mandate within 72 hours is welcome it is critical for the amendments to clarify that the provision for 24 hour takedowns of violent imagery of women and children, as was under the 2021 guidelines are not diluted in the process. Assuring the 24 hour takedown for protection of victim rights is critical”, she said.
Finally, she added, “whilst an appellate grievance forum may be a welcome move for victims,” its legal sustainability will have to be watched since “a judicial authority is being sought to be set up through delegates legislation”, which may be contested in a court of law.
