EFF joined the Association of Progressive Communications (APC) and other digital rights organizations from around the world, urging the Indian government to withdraw its new amendment to Intermediary Guidelines and Digital Media Ethics Code (2021 IT Rules).

EFF has already expressed its concerns about IT Rules’ chilling effect on Internet users’ freedom of expression and privacy. The 2021 IT Rules compel significant social media intermediaries (those with registered users in India above a 5 million user threshold)  to deploy “technology measures” to proactively monitor certain types of content that have previously been found in violation of the 2021 IT Rules. This includes child sexual abuse material and content that has previously been removed for violating rules. Proactive monitoring will force companies to provide “automated tools”  which require monitoring what users post and share online, and inevitably rely on error-prone filters that undermine lawful online expression.

Online intermediaries face harsh penalties for failure to comply with the 2021 IT Rules, including a jail term of up to seven years.

The online intermediaries are also forced to comply with strict removal timeframes, e.g., they have 36 hours to remove restricted content, and 72 hours to respond to government orders and requests for data—not allowing providers enough time to assess the legality, necessity and proportionality of the request. 

New Obligations And New Roles

The latest amendments to the 2021 IT Rules include three major developments which put these human rights at risk. They add new burdensome due diligence obligations, introduce new powers for the position of Grievance Officer, and envision the establishment of a new government-led Grievance Appellate Committee.

In the new due diligence obligations, online intermediaries must “ensure compliance” with the IT Rules. The intermediaries are required to both inform the users of the rules and make sure the users do not “host, display, upload, modify, publish, transmit, store, update or share’ any of the restricted types of contents. This actively pushes the online intermediaries towards more proactive monitoring of online content, deepening the adverse impact on freedom of expression.

The 2021 IT Rules oblige the intermediaries to appoint resident Grievance Officers to respond to user complaints and government and court orders. The new amendments further expand the Grievance Officer’s powers: the Officers can now address issues related to user account suspension, removal or blocking, or any user complaint on some types of restricted content. The Rules set a short deadline to resolve user complaints, stripping the users who were complained about of the opportunity to obtain any meaningful redress.

Additionally, the amendments also envisage the establishment of a government-led Grievance Appellate Committee to hear appeals against the Grievance Officer’s decisions.  The Committee would effectively have the power to overturn platform content moderation decisions, regardless of judicial assessment—which goes against our Manila Principles that advocate for content removal based on only judicial decisions.

Proactive monitoring restricts user privacy and leads to removal of legitimate speech. It also increases government involvement in content moderation, instead of direct judicial oversight.

These overbroad, restrictive, and intrusive amendments further tighten the rules for intermediary liability, which further exacerbates the disproportionate intrusion of free speech in India. Proactive monitoring restricts user privacy and leads to removal of legitimate speech. It also increases government involvement in content moderation, instead of direct judicial oversight.  And it is happening in a context where companies, such as Twitter, are being depicted as having “lost intermediary status” for their failure to comply with the IT Rules.

EFF and partners call on the Indian government to suspend the implementation of the 2021 IT Rules, withdraw the new amendments, and hold inclusive public consultations. 

To learn more about the legal trends affecting online intermediaries around the world, check out our recently published four-part series on the topic, which begins here. 

The full text of EFF's submission to the Indian government, and list of signatories, is below: