[India] AIC Submits Comments on Intermediary Guidelines and Digital Media Ethics Code (July 2022)

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The Asia Internet Coalition (AIC) has submitted comments to the Ministry of Electronics and Information Technology (MEITY) on the proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules) (Proposed Amendments(s)).

Key recommendations include:

  1. Intermediaries, as conceived under Section 79 of the IT Act, only provide a technology platform or a computer resource as a service to the user. It is ultimately the user who determines the nature of content to be communicated or transmitted on the platforms / computer resources operated by the intermediaries. Given this, it may be more beneficial to impose mandates prohibiting the dissemination of certain types of content on the user itself. Furthermore, the existing due diligence obligations on the intermediaries with respect to users, such as the requirement to inform users periodically of any changes to the user-facing policies and consequences of non-compliance with such policies.
  2. We urge MEITY to allow industry to adopt a self-regulatory grievance redressal mechanism as an alternative to the GAC since it will introduce much-needed industry expertise into the process. Given the changing needs of technology and users alike, an industry-led self-regulatory mechanism will enable businesses to adopt best practices and ensure long term solutions by identifying trends and gaps. In this regard, we request MEITY for a period of at least six months to implement such a self-regulatory mechanism.
  3. We request MEITY to retain the pre-existing timeframe with respect to all grievances given the infeasibility of implementing the Proposed Amendment and the unintended but adverse impact it may have on users.We further recommend these new requirements – deadlines of 24 hours to acknowledge requests to block or suspend a user, or remove information relating to Rule 3(1)(b), and would shorten complaint redress periods to 72 hours for certain content – be limited to intermediary services that have a demonstrated propensity for virality.  That is, these obligations should only attach to services or parts of services that enable sharing of material to all end users, and where the intermediary reasonably knows, based on past experience, that there is a propensity for material to be amplified or accessed virally on the service.
  4. The law on the horizontal applicability of fundamental rights is limited and still evolving in India. In this regard, we request MEITY to reconsider imposing fundamental rights obligations through the Proposed Amendments on private entities acting as intermediaries.
  5. Thus, given the obvious challenges that arise from the ambiguity of the applicable rules, it is suggested the Government issue a clarification to specifically exclude such intermediaries to ensure that the safe harbour provision which is essential for the conducive functioning of many technical intermediaries not be diluted. In addition, to help business entities and stakeholders understand the obligations under the Rules it is further suggested to clearly provide clarification on what amounts to a non-observance of Rules and under what circumstances will an intermediary lose its exemptions from liability provided under Section 79 of the Law.