Data PrivacyAn Overview of the Draft Amendments to Information Technology Rules, 2021

INTRODUCTION

The Ministry of Electronics and Information Technology (hereinafter referred to as “MEITY”) has recently released the draft of proposed amended Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as “IT Rules”) vide a Press Note dated 06.06.2022, which is open for feedback and input from the stakeholders.

The IT Rules aim to ensure an open, safe, trusted, and accountable internet for all users, thereby putting the interests of digital Indians first and the protecting their rights as enshrined in the Constitution of India.

The IT Rules have successfully established an effective regulatory mechanism for the Internet space and created a sense of accountability towards safeguarding data amongst intermediaries. However, with the constantly evolving digital environment, various new loopholes have been recognized in the extant IT Rules. Thus, the draft amendment has been proposed to the IT Rules to address the challenges and gaps. This article discusses the impact of the draft amendment on the IT Rules.

KEY TAKEAWAYS OF THE DRAFT AMENDMENT

The proposed amendment pertaining to due diligence by intermediaries and the grievance redressal mechanism ensures compliance of certain mandates such as adherence to the Constitutional principles on the virtual paradigm, strict adherence of the provisions of the Information Technology Act, 2000 and the IT Rules, and further seeks to strengthen the measures available at the disposal of the intermediary via the Grievance Officer.

The draft amendment further provides for establishing an appellate redressal body, namely, the Grievance Appellate Committee, as an appellate forum against the orders passed by the Grievance Officer.

Rule 2(1)(w) of the IT Rules defines the term ‘significant social media intermediary’ which refers to a social media intermediary that has a registered number of members above the threshold limit as prescribed by the Central Government.

While, Rule 2(1)(x) of the IT Rules defines the term ‘social media intermediary’ as an intermediary primarily enabling online interaction between users and allowing them to create, upload, share, disseminate, modify or access information using its services.

Rule 3(1)(a) of the IT Rules states that an intermediary has to mandatorily publish the rules and regulations, privacy policy and user agreement on their website and mobile application, with reasonable prominence for access or usage of its computer resource by a person.

In today’s digital era, social media intermediaries play a substantial role as almost everyone registers themselves with such platforms, and subsequently submit their personal data in such platforms.

The draft amendment has provided for strict compliance with the aforesaid Rules. The introduction of the aforesaid mandates ensure that all intermediaries comply with the minimum requisites of data privacy, in order to eliminate hindrances to a safe internet space for the netizens.

IMPACT OF THE DRAFT AMENDMENTS

The said draft amendment will help maintain a proper check on these intermediaries with regards to compliance, and further help to widen the goals of safeguarding  informational privacy of an individual, as held in the landmark case of Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, to be an essential aspect of the Right to Privacy under Article 21 of the Constitution.

Further, the draft amendment makes it obligatory for the intermediaries to inform the intermediary’s respective rules and regulations, privacy policy or user agreement to the user and cause the user of its computer resource to not display such contents as is given under Rule 3(1)(b) of the IT Rules.

By directing the intermediaries to take all reasonable measures, the draft amendment is expected to positively impact the netizens by empowering them and making accessibility of the Internet more convenient, while at the same time maintaining transparency and compliance throughout.

With the introduction of the IT Rules, several instances were reported where the intermediaries had acted arbitrarily, violating a user’s constitutional rights. In the case of Sanjay Kumar Singh v. Union of India, (2011) 14 SCC 692, the  IT Rules were challenged on the ground that the basis of removing content from the Internet by the intermediaries is vague and imposes an overboard restriction on the freedom of speech.

The proposed amendments specifically aim at strengthening the intermediary redressal mechanism on two limbs. Primarily, the additional powers of suspending, removing and blocking the nefarious user accounts creates a necessary deterrence effect and in furtherance, the proviso maintains the necessary time constraint on the intermediary to take expeditious and appropriate actions catering to the dynamic paradigm of the Internet.

AMLEGALS REMARKS

The primary goals that underly these amendments are to create an open, safe, trusted and  accountable space for everyone. This goal is realized by maintaining intermediaries that adhere and ensure compliance of the constitutional scheme in letter and spirit.

The draft amendment will ensure that the digital space is regulated effectively to the extent that harmful and unlawful information does not become viral and is removed expeditiously. The users are provided with an alternate grievance redressal mechanism at their disposal to exercise vigilance in the digital space.

– Team AMLEGALS assisted by Ms. Jahnavi Pandey