The information technology (intermediaries guidelines) rules 2011 of India have raised many eyebrows in the past. Internet intermediaries have shown their discomfort with the applicability of these intermediary guidelines. The desire of regulation of social media in India has also added another perspective to this issue.
The guidelines are primarily meant for establishing Internet intermediary liability in India. Internet intermediaries’ law and liability in India has become very stringent after the passing of the intermediary guidelines.
These guidelines have introduced the concept of cyber law due diligence in India. Naturally, cyber due diligence for Indian companies, cyber due diligence for Paypal and online payment transferors in India, cyber due diligence for foreign websites in India, etc have now been officially introduced in India.
When lots of doubt and protests were raised against these guidelines, the matter reached the parliamentary corridors. The parliamentary standing committee on subordinate legislation has issued a report in which it has criticised the government and asked it to make changes to IT rules that govern internet-related cases in India. It found many ambiguities in the existing intermediary guidelines and
It said in the report that multiple clauses in the laws had inherent ambiguity and that discrepancies exist in the government’s stand on whether some rules are mandatory or only of advisory nature.
Now the department of electronics and information technology has issued a clarification in this regard. The clarification says that these Rules provide a due diligence framework to be observed by intermediary while discharging his duties.
Sub-rule (4) of Rule 3 provides that the intermediary upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2), shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2).
It has been clarified that the intended meaning of the said words is that the intermediary shall respond or acknowledge to the complainant within thirty six hours of receiving the complaint/grievances about any such information as mentioned in sub-rule (2) of Rule 3 and initiate appropriate action as per law.
Further, the grievance officer of the intermediary shall redress such complaints promptly but in any case within one month from the date of receipt of complaint in accordance with sub-rule (11) of Rule 3. The intermediary should have a publicly accessible and published grievance redressal process by which complaints can be lodged.
This would also increase litigation and the internet intermediary liability and due diligence related disputes and regulations. We strongly recommend either a much elaborative and holistic clarification must be given by the department or amendments/fresh enactment of rules must be undertaken in this regard.