The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “IT Rules”) were subject to proposed changes by the Union Government on June 6. According to a press release from the Union Ministry of Electronics and Information Technology, these changes are being suggested to help navigate through obstacles and gaps in the IT Rules.
WHAT ARE THE NEW IT RULES?
The Information Technology (Intermediaries Guidelines) Rules of 2011 were replaced with the IT Rules of 2021 to implement several modifications. The Information Technology (Procedure and Safeguards for the interception, monitoring, and decryption of Information) (Procedure and Safeguards for the interception, monitoring, and decryption of Information Rules, 2009) imposed several compliance regulations on social media intermediaries, from appointing a Grievance Redressal Officer to tracing the first originator of information as and when required by a judicial authority or by any competent authority defined in Rule 2(d) of Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009.
Experts and social media middlemen rebuked it in multiple ways. They reasoned that because the restrictions required identifying the text’s original author, they would undermine end-to-end encryption. The Ethics Code also creates an Oversight Committee, predominately made up of the State’s executive branch members. Due to the Executive’s new function as the Judiciary, which may result in favouritism and arbitrary decision-making, this is an issue.
WHAT MODIFICATIONS TO THE IT RULES HAS THE PROPOSED AMENDMENT MADE?
It necessitates the formation of a second committee (a Grievance Appellate Committee) to consider the appeal of the Grievance Redressal Officer’s decision. The proposed amendment’s Rule 3(3) specifies that the Union Government shall appoint the committee’s chairperson and members. The difficulty with this component of the concept is that it could result in favouritism and arbitrary decision-making on the part of the committee. The committee will serve as the final arbiter on any complaints brought forth regarding any content found on intermediaries, and having a body made up entirely of individuals appointed by the Executive branch may result in bias in the administration and a violation of the fundamental rules of natural justice.
The intermediaries must uphold the citizens’ constitutional rights, according to Rule 3(2). Since this is virtually the same as enforcing fundamental rights against private entities, this is a historically unusual action by the government. The three-tier grievance redressal mechanism that was envisioned in the IT Rules of 2021 before being suspended by the Bombay High Court last year is similar to how the government is establishing the grievance appellate committee. An inter-ministerial committee made up primarily of members of the executive branch served as the third and last layer of the aforementioned structure. Concerns were raised about the government acting as the sole arbiter when determining the legitimacy of content on social media or over-the-top platforms.
The Draft proposals also shorten the Grievance Officer’s response time to customer complaints. Under some conditions, the Grievance Officer is required to respond to the complaint within 72 hours after receiving it. The IT Rules of 2021’s stayed relevant clause now gives the Grievance Officer 15 days to respond to complaints.
WHAT PROBLEMS APPEAR?
The Supreme Court has already received numerous applications challenging the IT Rules, 2021. For a variety of reasons, these Rules attracted criticism from observers and detractors. As was mentioned above, the Bombay High Court partially blocked certain of their provisions, while the high courts in Kerala and Madras had previously blocked any coercive action taken by the Union Government under these Rules last year.
The Rules directly or indirectly violate the spirit of our Constitution by designating the Union Government as the final arbiter in disputes involving content on social media and OTT platforms. Since any viewpoint (or the majority of them) that is critical of the government may be removed by the committee chosen by the government, it directly violates the fundamental right to free expression. As a result, the government will become the judge in its case. It is comparable to breaking the natural justice principle Nemo judex in causa sua.
In light of this, the government’s decision to introduce this modification, reminiscent of the stayed Rules, is regrettable. The suggested draught revisions may result in governmental censorship. Social media posts occasionally contain establishment criticism, which may not be very palatable to the elected administration. This amendment gives the government the power to rule on complaints brought against the Grievance Officer’s judgement, however, this power is subject to abuse. The current system, which lacks actual independence in decision-making, needs to be changed by the government.
By defending our fundamental rights, the Supreme Court of India fulfils the role of the “sentinel qui vive.” It is crucial that the Supreme Court, which has been given the fundamental responsibility to preserve citizens’ rights, steps in and upholds those rights.
Author’s Name: Pragya Swaraj (Chanakya National Law University, Patna)