Comments on the Proposed Draft Amendments to the IT Rules, 2021

Abstract

The Ministry of Electronics and Information Technology has sought comments on various proposed amendments to the intermediary liability framework under the Indian information Technology Act. The proposed changes seek to impose a variety of new duties on intermediaries, failure to adhere to which can lead to them being denied 'safe harbour' protections under the parent legislation. Of particular importance is the proposal to establish a new entity to oversee and adjudicate on the validity of complaints redress by intermediaries. We comment on the proposed changes, pointing out that many of the proposed duties, while seemingly well intentioned, are outside the scope of the parent law and therefore unconstitutional. A number of the proposed changes are also ambiguously drafted which may lead to inappropriate enforcement. This could stifle constitutional rights, such as that of speech and association, while also creating regulatory uncertainty and therefore incentivising excessive private censorship. Finally, we opine that the creation of a government entity tasked with overseeing complaints redress is problematic due to the mandate as well as structure of the proposed entity. We instead propose establishing a process, through statutory changes, to oversee complaints redressal by intermediaries from a procedural perspective, i.e. where such an entity does not act as an appellate mechanism from content curation decisions taken by intermediaries.

Keywords: intermediary liability, platform regulation, freedom of speech, internet regulation