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Legal experts worry about growing government control over social media content

New amendments proposed by the Department of Electronics and Information Technology to the Information Technology Rules 2021 have heightened concerns already surrounding issues around government control over digital news media, social media platforms and their content.

The new amendments launch the idea of ​​a government-appointed “grievance appeal board” made up of government officials who will have the power to moderate content on social media platforms if an appeal is made to the board against the decision of the social media company.

One or more such committees could be formed, the Center proposed. In accordance with the draft amendments, the social media companies are required to comply with the orders of the committee appointed by the government.

“This basically means that the government will become the arbiter of what social media posts are acceptable, what are not, and whether someone lodges a complaint with a social media company and is unhappy with any way she can appeal to the government,” the lawyer said. and Apar Gupta of the Internet Freedom Foundation.

“The proposed changes deepen and expand on the same concerns that have been expressed by the high courts. There are about 17 cases pending before the Supreme Court regarding transfer requests that challenge the constitutionality of the IT rules. In at least two cases, judgments have been issued by the Bombay High Court and the Madras High Court which state that these rules confer a high degree of government control on online news media platforms. This in itself violates the fundamental right to freedom of speech and expression,” Gupta says.

Prashant Philips, a partner at Lakshmikumaran & Sridharan who regularly advises clients on matters related to cyber law, said: “The proposed amendment does not provide detailed powers conferred on the committee or a procedure to be followed (such as for the production of evidence , enforcement or otherwise conduct the proceedings). This is particularly important given that the IT law (the parent legislation) does not envisage the creation of such a body and does not specify any of these details”.

The same sentiments are echoed by Gupta. “It is not an independent judicial body, something that is established by law and has a certain degree of independence. This will be under direct ministerial supervision. The issues of lack of independence will come up quite often,” he says.

“The review of these provisions, details regarding the jurisdiction and the basis for the exercise of the powers of the committee are important because they define the functioning of the GRAC. They can also protect proposed changes, once enacted, from challenges based on over-delegation, vagueness, or uncertainty,” says Philips.

Another problematic part of the draft amendment proposal is the requirement for a social media company’s grievance officer to handle a complaint brought before them for less than 72 hours in some cases. Current rules that require all social media companies to appoint grievance officers to handle complaints against platforms give grievance officers 15 days to deal with a complaint submitted to them.

Lagna Panda, Partner at Chandhiok & Mahajan, expresses her concerns saying, “The proposal to reduce the content takedown period from 15 days to 72 hours is impractical. It is likely to affect the accuracy of content moderation. Requests to remove content may be made for highly subjective reasons, such as obviously false or misleading content that may be perceived as fact. Intermediaries may choose to err on the side of caution and simply remove content that would seriously undermine users’ right to free speech and expression.

The ball now goes to the Supreme Court, which is currently hearing the case and has stayed proceedings on all pending motions in various high courts challenging the constitutionality of the IT Rules, 2021. The case is due to be heard on July 19 after the Supreme Court. The court reopens after the summer holidays.

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