Brave new web

The draft amendments proposed by the Ministry of Electronics and Information Technology (MeitY) to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules 2021”) on 30 March appear to be attempts to protect the Indian internet user. However, they risk imposing control under the aegis of seeking intermediary accountability. Given that intermediaries include the rogues’ gallery of social media platforms and search engines, accountability may not seem like a bad thing. 

Draft Rule 3(4) requires intermediaries to comply with “any clarification, advisory, order, direction, standard operating procedure, code of practice or guideline issued by the Ministry” relating to their due diligence obligations under the IT Rules 2021. A failure to comply would mean that an intermediary loses its safe harbour protection under Section 79 of the Information Technology Act, 2000 (“IT Act”). Safe harbour protections are essential to prevent the internet from becoming a pre-censored space. Without them, intermediaries would face civil and criminal liability for all kinds of libellous, hateful, intimidatory bile spewed by their users.

In the good old days, before the draft amendments, the IT Rules 2021 set out the due diligence obligations expected of intermediaries. These obligations included making reasonable efforts to ensure they don’t host content that is harmful to children, infringes intellectual property, impersonates others, threatens national security or intentionally misleads people with misinformation.

While some of these obligations dealt with black-and-white issues like child pornography, many others require subjective analysis. Intermediaries adopted their own policies, allowing them to afford due protection for the freedom of speech of their users, while being accountable if they failed to make reasonable efforts. 

Draft Rule 3(4) takes away that discretion. It makes compliance with the word of the state a due diligence obligation in itself. Note that this isn’t just about legislation or court orders, but also any advisory or SOP that the government issues. Intermediaries can be asked to take down content  not because that broke a law but because it didn’t align with a government advisory.

One might have still been able to perhaps make counter-arguments about how draft Rule 3(4) is limited in its scope and only obliges intermediaries to follow directions that the government puts out, and therefore the draft amendments aren’t trying to control users’ speech. But that is before one moves on to the proposed amendments to Rule 8. 

The IT Rules, 2021 included a “Code of Ethics” for digital media, and set out how grievances could be raised by the public relating to violations of this Code of Ethics. The grievance redressal system operates at three levels, with the final level being an Inter-Departmental Committee (“IDC”) set up by the Union Government. Cases may also be referred to the IDC by the Union Government. 

Earlier, only publishers of news and current affairs content or publishers of online curated content were subject to the Code of Ethics and the IDC grievance redressal process. The proposed amendment to Rule 8 would expand their application to intermediaries as well as all “news and current affairs content” (emphasis added) created by users, who would not otherwise qualify as publishers.

Once again, the draft amendment – whether through bad drafting or otherwise – appears to put the onus here for compliance on intermediaries, but the price is the speech of individual users.

The draft amendments have not yet been finalised and MeitY has invited feedback on them by 14 April. It may well be that the Union chooses not to proceed with the amendments after seeing the feedback. It may be that the amendments are passed but then struck down by the courts. 

In 2023, for instance, the Union Government tried to create a special framework for fact-checking information related to the “business of the Central Government”. The amendments  required intermediaries to take the word of the Union’s own fact check unit as gospel truth when deciding whether or not information about the Central Government was “fake, false or misleading”. The Bombay High Court struck down this amendment as unconstitutional and its operation remains stayed while the Supreme Court considers the matter. Here too, the Union was using the architecture of intermediary liability to impose restrictions on content, without expressly imposing restrictions on individual users of the internet. The Court, in 1972, had held that the state cannot use administrative red tape to choke free speech. 

It also appears to be taking us further away from the principles laid down in Shreya Singhal v Union of India (2015), opening the door to censorship of speech based on vague grounds. In that case, the Court had emphasised that information blocking orders Section 69A of the IT Act should be reasoned, with procedural safeguards. Extending the Code of Ethics and the blocking process under the IT Rules, 2021 to user content without extending any safeguards or process to users themselves, hardly seems to be consistent with that approach.

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