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MeitY Introduces Amendments to The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021

On October 28, 2022, the Ministry of Electronics and Information Technology (“MeitY”) released the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 (“IT Rules, 2022”). The amendments to the IT Rules have been published pursuant to the draft amendments proposed by MeitY in June 2022 which were published seeking inputs from the public.

One of the important amendments is the introduction of a Grievance Appellate Committee (GAC) (under rule 3A of the IT Rules, 2022) which will be formed within three (3) months from the date of publication of the IT Rules, 2022. The GAC would comprise of a chairperson and two whole time members (appointed by the Central Government) of which one would be ex-officio and the two members would be independent members.

Prior to the introduction of the GAC, users of a platform could raise their grievances with the grievance officer appointed by the intermediary and the statute did not provide for any appellate authority. However, with the introduction of the amendment, any person aggrieved by the decision of such grievance officer is permitted to appeal to a GAC within thirty (30) days of receiving a decision from the grievance officer. It will be interesting to see the outcome of this particular amendment since the intermediaries were strongly advocating for self-regulation (which has been done away with by the Government through this amendment).

Another amendment worth considering is the option given to the intermediaries to publish their privacy policy, user agreement and any other rules and regulations (as may be applicable) on its website and/or mobile application either in English or any other language as specified in the eighth schedule of the Constitution. Keeping in mind the vast Indian demographic (and the numerous languages incorporated in the eighth schedule), this amendment could lead to difficulties by numerous users to peruse the contents of such documents.

Furthermore, the amendments have also added the requirement for an intermediary to make ‘reasonable efforts’ to prevent users of its computer resource from engaging in activities prohibited under the IT Rules, 2022 such as hosting, displaying, uploading, transmitting, publishing, or storing information that is harmful to a child; belongs to another person; infringes another person’s intellectual property rights, etc. Prior to the amendment, it would suffice for the intermediary to simply inform the users about the prohibited activities. With the requirement of ‘reasonable efforts’ being imposed on the intermediaries, it could be argued that the intermediaries might not be able to claim safe harbor provisions (thereby making them liable for the content hosted on their platforms by third-parties). Also, the amendment has failed to elaborate on an objective criterion on what will qualify as ‘reasonable efforts’ by an intermediary.

Further, as regards the internal grievance redressal mechanism of the intermediaries, the IT Rules, 2022 now provide that in the event of a complaint pertaining to the removal of certain information or prohibited content [as provided under rule 3(b) of IT Rules, 2022], the intermediary is required to take expedited action and resolve such complaint within seventy-two (72) hours of receipt of such complaint. This might place added burden on the intermediaries to adjudicate upon and dispose of such complaints within the short time frame specified in the amended statute.

It remains to be seen how efficiently various (big and small) intermediaries are able to comply with the provisions introduced through the amendment in the statute.

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