Information Technology Intermediary Rules Amended (India)

Key Provisions

• 1. Language of Policies: Prior to the amendment, intermediaries were required, as part of their due diligence obligations, to prominently publish rules and regulations/ privacy policy, etc., on their website/ mobile application. Now, the Amendment Rules further enhance these obligations and require intermediaries to not only publish the rules and regulations, etc., but to also ensure that such rules are published in English, or any language specified in the Eighth Schedule of the Constitution of India (which presently consists of 22 regional Indian languages) for access or usage of its platform in the language of the user’s choice. This amendment would effectively require the intermediary to ensure that all policies, rules, regulations etc. are available immediately in all of the aforesaid languages.
• 2. Ensuring Compliance: The Intermediary Rules required an intermediary to inform users through its privacy policy, rules etc. not to host, display, upload, modify, publish, transmit, store, or share any information that, amongst others, belongs to another person and to which the user does not have any right, is grossly harmful, defamatory, obscene, pornographic, paedophilic, or otherwise unlawful in any manner. The Amendment Rules now impose a legal obligation on intermediaries to not only inform users of its rules and regulations/ privacy policy, etc., but also to ensure compliance of such policies and rules make reasonable efforts to cause its users to not host, display, upload, share etc. any prohibited information. There is no clarity or guidance in the Amendment Rules on what efforts the intermediary is required to take to ensure compliance, however, such an obligation is bound to increase compliance for intermediaries who would now be required to implement additional measures to filter and moderate content by users or use automated tools to detect breach.
• 3. Restricted Content: In accordance with the Intermediary Rules, intermediaries are required to set out in their policies, activities that users are prohibited from undertaking or information that users are prohibited from uploading, hosting or sharing. The list of prohibited information has been expanded to include (i) information that promotes enmity or that could incite violence between different groups on the grounds of religion or caste with the intent to incite violence; and (ii) misinformation. However, the obligation imposed on intermediaries under the Intermediary Rules to ensure that ‘defamatory’ or ‘libellous’ content is not hosted on its platform, has now been removed.
• 4. Respect of Constitutional Rights: The Amendment Rules have introduced a new rule which mandates intermediaries to respect constitutional rights of Indian citizens including Articles 14 (right to equality), 19 (right to freedom of speech and expression) and 21 (right to protection of life and personal liberty). No further clarity has been provided on the steps required to be taken by intermediaries that would ensure that such rights are ‘respected’ or protected.
• 5. Changes to the grievance redressal mechanism: Prior to the amendment, the grievance redressal officer of the intermediary was required to acknowledge complaints within 24 hours and dispose of such complaints within 15 days from receipt. While this obligation continues, the Amendment Rules require intermediaries to resolve complaints concerning removal of information that is in violation of the Intermediary Rules within 72 hours of receiving the complaint, save for complaints regarding, (a) unauthorised use of information belonging to another person and to which the user does not have any right; (b) information that infringes any intellectual property or other proprietary rights; and (c) information that violates any law for the time being in force. All other grievances will continue to follow the 15-day window for redressal/resolution. The Amendment Rules also contain a provision whereby intermediaries are required to develop appropriate safeguards to avoid misuse of the grievance redressal mechanisms by users. Given the reduction in timelines, intermediaries will have to put in place additional measures to handle some complaints within a 72-hour window.
• 6. Grievance Appellate Committee (GAC): Under the Amendment Rules, the Central Government has been empowered to establish one or more GACs within 3 months from the effective date of the Amendment Rules to allow for appeals from decisions of the grievance officer of an intermediary. The GAC will include 1 chairperson and 2 whole-time members appointed by the Central Government, of which one member will be ex-officio and 2 members would be independent. The resolution of disputes by the GAC will be done entirely online. Appeals from the decisions of a grievance officer need to be filed by the user/aggrieved person within 30 days of receipt of such decision. The GAC must deal with such appeals expeditiously and endeavour to resolve them within 30 (thirty) days from date of receipt of the appeal. Intermediaries are further required to publish a compliance-report on their website, reporting compliance with the orders of GAC.

Conclusion

The Intermediary Rules were introduced to increase accountability of intermediaries and to regulate the publication and transmission of online content. The Amendment Rules further tighten the process of dissemination of information and aim to improve the grievance redressal mechanism. However, the obligations imposed on the intermediaries including the requirement to make reasonable efforts to ensure compliance by users as well as resolving certain complaints within 72 hours would significantly increase compliance costs for intermediaries. The Amendment Rules are effective immediately, thus intermediaries operating in India must take steps to ensure compliance with the Amendment Rules at the earliest.