New Delhi: The Rajya Sabha Committee on Subordinate Legislation Monday summoned the Ministry of Electronics and Information Technology (MeitY) for a discussion on the controversial Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Prior to the meeting, the committee had sent MeitY a document with seven detailed questions about the rules which the ministry submitted a written response to.
In this questionnaire, the committee — headed by BJP’s Laxmikant Bajpayee — asked questions related to the use of vague language in due diligence requirements, effect of certain rules of free speech and the potential for abuse by “regime-proxies” against online news publishers using the grievance redressal mechanism.
ThePrint has learnt that during the meeting, which lasted for about one hour and 40 minutes, multiple members of parliament (MPs) from across party lines expressed their displeasure over how social media users were still unable to get their grievances heard. The ministry will depose before the committee with detailed replies later.
Part II of the rules empowers MeitY to regulate intermediaries while Part III empowers the Ministry of Information and Broadcasting (MIB) to regulate publishers of online curated content (Netflix, Hotstar, etc.) and publishers of online news and current affairs content (ThePrint, Newslaundry, etc.).
These rules were notified on 25 February, 2021, and laid before the Rajya Sabha on 25 March, 2021. The first set of amendments to these rules, which allowed for the creation of executive-led and -appointed grievance appellate committees, was notified on 28 October, 2022, and laid before the Rajya Sabha on 16 December, 2022.
The ministry is currently in the process of finalising further amendments to the rules to regulate real money games online and to ensure that content termed ‘fake’ by the Press Information Bureau’s (PIB) fact-check unit is taken down by intermediaries.
Since their notification, the IT rules have been embroiled in controversy. More than 17 petitions have been filed across different high courts in India challenging the constitutionality of Part III of the rules. These include petitions by the Press Trust of India, The Quint, The Wire, Alt News, and other media organisations. WhatsApp and Facebook, too, have challenged the traceability requirement notified in these rules.
For the committee on subordinate legislation to take these rules up for consideration two years after notification is completely normal, Chakshu Roy, the head of outreach at PRS Legislative Research, told ThePrint.
“First, it takes the ministry time to frame the delegated legislation. Then if it is gazetted during the intersession period, the government has to table the notified subordinate legislation in the house in the upcoming session. It is only after it has been laid that the committee (on subordinate legislation) can take it up,” said Roy.
“Since the committee looks at notifications across ministries, it can take some time for a subordinate legislation to come up before the committee. When the committee examines the notification, it will call the ministry for response,” he added.
If the committee is not satisfied with how the rules have been framed, it can only make recommendations in its report and then it is up to the government to follow them or not, he said.
Also read: Congress hits out at draft IT rules — ‘Modi govt has anointed itself judge, jury & executioner’
‘Can vague language be misused?’
The committee asked MeitY about the use of vague language, ThePrint learnt. Terms such as ‘harassing on the basis of gender’, ‘patently false and misleading’ and ‘injury’ that have been used in rule 3 to lay down due diligence requirements for intermediaries have not been defined anywhere and could be abused by authorities.
Referring to the Shreya Singhal judgment of 2015, wherein the Supreme Court struck down Section 66A of the Information Technology Act, 2000, on grounds of it being vague, the committee asked how MeitY would bring “water-tight clarity” about these terms.
In response, MeitY wrote that it deliberately tried to draft the rules using simple language instead of legal jargon so that ordinary users could understand what constitutes non-compliant information. Citing the grievance redressal mechanism — comprising the grievance officer at the level of the intermediary and the grievance appellate committee appointed by the government above that — it argued that there were adequate mechanisms in place to protect the interests of users/citizens.
‘How do you prevent abuse by ‘regime-proxies’?’
Mentioning the three-tier grievance redressal mechanism for publishers, the committee asked MeitY what was being done to ensure that “regime-proxies” did not file “frivolous complaints” against news publishers, ThePrint learnt.
Citing MIB, MeitY clarified that publishers are obligated to address only grievances related to the Code of Ethics. Of the over 2,800 publishers that have furnished their information to the MIB and appointed a grievance officer, more than 97 per cent are publishers of news and current affairs content. MeitY said that none of these publishers have expressed any concern about frivolous complaints being filed.
Both Bombay and Madras High Courts have stayed Rule 9 of the IT Rules, which gives the overarching framework for the three-tier grievance redressal mechanism for online publishers. However, publishers continue to accept and process grievances, partly out of fear of being held in non-compliance and thus attracting the ire of the government. There is also significant confusion among the legal community about whether staying Rule 9 means the MIB still has the right to issue blocking orders about news content to publishers or intermediaries.
‘How can you regulate streaming platforms and news websites using the same rules?’
The committee, ThePrint learnt, pointed out that online news and current affairs, and online curated content are completely different entities which have different problems and need different solutions. It asked how such disparate entities could be dealt with by a single set of rules and if these could have been effectively dealt with in different dedicated parts.
In response, MeitY pointed out that while the “co-regulatory framework”, or the three-tier grievance redressal mechanism, is common to both kinds of publishers, the Code of Ethics differs for the two classes.
According to the Code of Ethics appended to the IT Rules, publishers of online news and current affairs must adhere to norms of journalistic conduct of the Press Council of India under the Press Council Act, 1978, and Programme Code prescribed in Section 5 of the Cable Television Networks Regulation Act, 1995. They are also prohibited from publishing or transmitting any prohibited content.
On the other hand, the Code of Ethics prescribes more granular requirements for publishers of online curated content. It goes into detail about how the content must be classified according to age and based on themes — like violence, nudity, sex, language, drug and substance abuse, and horror — and how these descriptors must be displayed.
During the meeting, at least one question, related to regulation of publishers of online news and current affairs and publishers of online curated, was asked by the committee. Two sources said the members wanted to know how two different ministries were dealing with the implementation of the same set of rules.
‘Do blocking orders allow the content creator to make their case?’
The Committee also brought up the Section 69A Blocking Rules under which strict confidentiality must be maintained regarding all blocking requests by the government. ThePrint has learnt that the committee’s questionnaire pointed out there is no provision for the creator of the content to be heard for being blocked and asked if this could undermine the principle of natural justice.
MeitY in its response said that the Blocking Rules require the designated officer to make “reasonable efforts” to identify either the person or the intermediary who has hosted the information. It said that the designated officer, as defined by the Blocking Rules, approached the website owner if the content is hosted on a website but in case the content is made available through an intermediary, the ministry approaches the intermediary because the identity of the user is known only to the intermediary.
Thus far, in the 14 years of the Blocking Rules being in effect, creators of blocked content have been rarely allowed to depose before the Section 69A Blocking Committee. One such case was that of Tanul Thakur, a journalist who had created a satirical website called ‘Dowry Calculator’ that was blocked by MeitY after it received inputs from the Ministry of Women and Child Development. Thakur was not given a chance to depose before the committee and subsequently approached the Delhi High Court. The court had to direct MeitY to share the blocking order with Thakur and to give him a post-decision hearing.
There is also confusion around whether or not blocking orders issued by the MIB under IT Rules 2021 are bound by confidentiality since the IT Rules 2021 have no such provision. Despite that, the MIB procedure is also shrouded in secrecy except that unlike MeitY, the MIB issues a press release almost every time it issues a blocking order.
‘How can an intermediary prevent users from posting violating content?’
The Committee also asked MeitY how an intermediary was to know in advance if its users were publishing content that cannot be permitted on its platforms in accordance with Rule 3(1)(b) of the IT Rules. It asked if this requirement could be misused and jeopardise freedom of speech and expression, ThePrint has learnt.
When the rules were notified in 2021, the intermediary was only obligated to “inform” its users of the kind of content that they could not “host, display, upload, modify, publish, transmit, store, update or share”. However, when these rules were amended in October 2022, the intermediaries were also obligated to make “reasonable efforts to cause” its users to not “host, display, upload, modify, publish, transmit, store, update or share” the violating content. During a public consultation chaired by Minister of State Rajeev Chandrasekhar on the then proposed amendments in June 2022, multiple stakeholders had raised issues around it.
For instance, if multiple users are collaborating on a Google Doc, every change they make is uploaded to Google servers and transmitted and stored so that people can collaborate. How can Google, in such a case, prevent the users from potentially sharing violative content without breaching their right to free speech and potentially even impinging on their right to privacy?
Or, when a user types their query into a search engine, the moment they start typing, the information is uploaded and transmitted to the search engine’s servers so that it can suggest keywords. Without this transmission, how can the search engine ensure that no violative content is being searched for?
During the June consultation, multiple stakeholders had asked MeitY if this provision would mean that intermediaries would have to implement client-side scanning, which is scanning content for violations before it is even sent to the intermediary’s servers. MeitY had not given a conclusive answer at that time.
In response to the Committee’s questionnaire, however, MeitY submitted that the rules do not require the intermediary to know in advance the content published by its users, ThePrint learnt.
To that end, it argued that the intermediary can block content or the user only when the user posts non-compliant information, or when the intermediary has “actual knowledge” in the form of a grievance, a court order, or notice from the appropriate government agency.
In terms of proactive monitoring, the rules require only significant social media intermediaries (that is, those with more than 50 lakh users in India) “to endeavour” to use automated tools to proactively identify any content depicting or stimulating rape, child sexual abuse, or any content that is identical to content that has previously been removed. These automated measures, the ministry said, already need to be “proportionate” and keep in mind the interests of free speech and expression, privacy of users” as per the notified rules.
Referring to the requirement for intermediaries in the rules to respect all constitutional and fundamental rights, MeitY argued there are adequate measures in the rules to safeguard freedom of speech.
It also pointed out that when a user’s content is removed by the intermediary of its own accord, the latter is required to notify the user of reasons for removal and give them a chance to dispute such a removal.
‘What age-gating mechanisms are available online?’
The committee also asked MeitY about the age-gating mechanisms, or “access control measures” that have been implemented to ensure that children can only access safe content. It highlighted that because of mandatory online education, many children under the age of 13 have access to computer and mobile devices.
In response, MeitY cited MIB and reiterated the Code of Ethics.
‘How are you dealing with the harassment of pop-up ads?’
In a first for any parliamentary committee in India, the committee on subordinate legislation highlighted the issue of pop-up ads and ads that users must watch before closing. The ads, ThePrint learnt, were described as “harassment” in the questionnaire, and as leading to user “frustration”. The committee asked MeitY about any mechanism to register or report such ads and if there was a central registry to monitor such complaints.
MeitY, citing MIB, responded that Part III of the IT Rules is administered by MIB and users can file grievances for violation of the Code of Ethics. It is not clear how pop-up ads are regulated by MIB since ads are neither news and current affairs content nor arguably online curated content.
(Edited by Zinnia Ray Chaudhuri)
Also read: Congress hits out at draft IT rules — ‘Modi govt has anointed itself judge, jury & executioner’