AN ANALYSIS INTO THE VIRES OF THE NEW IT RULES OF INDIA
IT RULES 2021
-MANVI MOUDGIL[1]
ABSTRACT
In the
year 1995, internet services were launched in India, with its limited usage,
restricted to educational and research purposes. Then in the late 90’s, Indian
railway reservation was linked to internet. In the year 2000, cable internet
arrived in India[2].
The same year, IT act was introduced. At that time, the term Information
Technology was limited to electronic documents, e-signature and digital authentication
of records. Social networking sites came to India in the year 2005 and
smartphones arrived around the year 2008. Year after year, technology became
more advanced and in 2014, 4G network was introduced in India. Since the last
decade, internet access at home has substantially increased in India whereas
the average cost of mobile data has decreased in the previous years. As the
mobile technology developed, along with low-cost internet, India has seen a
sharp rise in its user base. While we all know that internet is a great source
of information, but at the same time, it is a place of great vulnerability.
Keeping in mind this aspect, the Government of India has passed new rules under
the section 69 A (2)[3], section 79 (2)(c) [4]and section 87 [5]of the IT act 2000
INTRODUCTION
The
Information Technology ((Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021[6],
have emanated from section 87 of The Information Technology Act 2000, the
primary law, which was concerned with cybercrime and electronic commerce in
India. IT Rules 2011 and 2021 are the subordinate legislations to the IT act
2000. IT Rules 2021 have replaced the IT rules formed in 2011[7]. These rules were notified
on 21st February, 2021 and came into effect on 26th May,
2021. 3 months’ time was given to these social media platforms to comply with
these rules. The newly formed rules are a combination of the draft
Intermediaries Rules, 2018 and Code of Ethics for Digital Media and OTT
Regulation. These rules were formulated by the centre with the help of Ministry
of Electronics and Information Technology and Ministry of Information and
Broadcasting. According to the centre, the rules established a self-regulatory
architecture, Code of Ethics and a three-tier grievance redressal mechanism for
social media, OTT platforms and news publishers. Norms of journalistic conduct
of the Press Council of India and the Programme Code under the Cable Television
Networks Regulation Act, would be required to be observed by the publishers of
news on digital media platforms. Therefore, it will provide a level playing
field between the offline and digital media. While, Amit khare, secretary,
Ministry of information and broadcasting, called the rules “progressive
institutional mechanism”, it also faced wrath from media houses, digital
platforms and experts, calling the new rules “vague, overbroad and
unconstitutionally arbitrary”. Many petitions were filed citing the rules as unconstitutional
burdens that impede the freedom of press.
WHAT
ARE THEIT RULES 2021?
The new
rules broadly deal with the regulation of social media and over the top (OTT)
platforms. Social media companies with equal to or more than 50 lakh or 5
million user base come under the ambit of significant social media
intermediaries while those with less than 50 lakh or 5 million user base are
social media intermediaries. The term intermediary acts as a link between
people. Likewise, social media has been referred as intermediary because it
helps people connect with each other and acts as a link between them. An
intermediary also enables online interaction between two or more users and
allow them to create, upload, share, disseminate, modify or access information
using its services[8]. Social media intermediaries will be required
to follow due diligence or else they will lose their immunity under the safe harbor
provisions, defined under section 79 of the IT Act. This also makes the social
media platforms liable for posting such content, making them criminally liable
for legal prosecution, if they don’t carefully monitor what is being posted
online on their platform. Under the new rules, a grievance officer [9]shall be appointed, who
will act as a mediator between the govt of India and social media companies.
The appointed officer shall acknowledge any complaint received from the
government within 24 hrs. and resolve it within 15 days from its receipt. The
social media intermediaries shall also appoint chief compliance officer[10], nodal contact[11] person and a resident
grievance officer, all of whom shall be residing in India. GOI also told them
to publish monthly compliance report.
The
significant social media intermediaries are bound to give the information of
the first originator to the Indian Law Enforcement agencies, in case the content[12]:
(i) affects
the sovereignty and integrity of India;
(ii)
threatens, endangers or jeopardizes the security of the State;
(iii) is
detrimental to India’s friendly relations with foreign countries;
(iv) is
likely to incite violence or disturb the maintenance of public order.
(v) is
linked to any kind of offence in relation with rape, sexually explicit material
or child sexual abuse material.
An
intermediary will be required to remove the above-mentioned content if they get
a direct order by any court or a notified government agency.
On the
other hand, OTT platforms were required to self-classify the contents under 5 age-based
categories,[13]implement
parental locks and display the classification rating on every content.
GOI also
mentioned that publishers of news on digital media would be required to observe
Norms of Journalistic Conduct of the Press Council of India and the Programme
Code under the Cable Television Networks Regulation Act. A three-level
grievance redressal mechanism[14] has been established
under the rules with different levels of self- regulation.
-
Level-I:
Self- regulation by the publishers;
-
Level
II: Self-regulation by the self-regulating bodies of the publishers;
-
Level
III: Oversight mechanism.
AFTERMATH
AND CRITICS
According
to some experts, after the imposition of the new rules, the tax liability of
these social media platforms has increased due to which, many small innovative
platforms will be discouraged to continue in India. The data retention[15] period has been extended
to 6 months, which is claimed to be a big issue for data protection of the
users. Although the government claims that its not interested in the content of
the messages, the structure of the IT rules suggest otherwise. Certain
loopholes have been identified in the guidelines, that can be a great obstacle
for the companies as well as people. The provision of identifying the first
originator of the message would override end-to-end encryption policy [16]of many social media
intermediaries. This can also be misused against any person. Due to these
rules, people will be reluctant to express their views, which will ultimately
restrict the free flow of information and will deprive them of their
fundamental right of freedom of speech and expression. Part III, titled ‘Code
of Ethics and Procedure and safeguards in Digital Media’, created an oversight
mechanism, which gave the government, unbridled, unfettered and excessive
powers to regulate content of digital news platforms. It also bought the
publishers of news and content on digital platforms, under the ambit of the
government, which will create fear among the people and will affect their
independent views and opinions. The newly formed rules gave complete control of
OTT platforms, social media and digital news in the hands of the government by
providing them with wide discretionary powers, which can be misused by the
parties for their political motives. According to the IT rules, the government
can ask to remove any content which it thinks is unacceptable. This gives them
the power to scrap down and manipulate any information which is disadvantageous
to its policies[17].
Immediately
after the publication of the rules, a number of petitions were filed by
numerous social media companies and digital news platforms. Intermediaries were
given 3 months to comply with the rules. On the last date, i.e., 25 May 2021, WhatsApp
filed a case against the GOI over the rules, arguing that the traceability
provision is unconstitutional and against people’s fundamental right to privacy[18]. Twitter also missed the three-month
deadline[19]
and faced a strong rebuke from the Delhi High Court. It refused to comply with
the new rules and claimed a safe harbor protection from any criminal liability
in India. In July, Press Trust of India challenged the rules in the High Court
of Delhi. Its plea stated that the rules would “usher in an era of surveillance
and fear, thereby resulting in self-censorship, which results in
abridgement/violation of Fundamental Rights as enshrined under Part III of the
constitution of India”.[20]
CONCLUSION
Right to
Freedom of speech and expression were laid down in the constitution of India
for people to put forth their opinion and provide them the right to express
their grievances, but the new rules seem to have taken the very rights from the
people of the country. It is to be noted that these rules came when there is
not even a robust data protection law existing in our country. People today,
look for platforms that can bring out the truth and provide them with right
information. There must be regulations for the publication of content, but
attacking on public’s privacy and giving complete power to the government to
remove any content, is completely unacceptable. It is a violation of the
fundamental right of free speech and expression. However, the real issues,
limited by the present rules go far beyond the regime. These rules can
adversely affect the growth of the society. Correct changes must be made to it
in order to promote development and progress of the nation. These rules have been bought into force at a
time when people are being slapped with charges under UAPA or prosecuted for
sedition for expressing dissent from the government. Therefore, these rules,
which would ordinarily seem to be bringing order, are now seen with a lens of
suspicion[21].
These regulations can be used by the government to go after individuals who
express opinions which are contrary to its interests. While the rules may
assist the agencies in going after something that has been deemed as offensive
and anti-national, it can also empower these agencies to take down anything
that goes against the interests of the government. Therefore, the utmost
importance must be given to bring a robust data protection law in the country
so that the free flow of expression and ideas is not hindered and people are
not threatened by its government for expressing their opinion.
REFERENCE
1.
https://www.thebetterindia.com/138354/tripura-cm-mahabharat-internet-history-india/
2.
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4.
https://www.meity.gov.in/writereaddata/files/GSR314E_10511%281%29_0.pdf
6.
https://lexlife.in/2021/05/06/an-extensive-critical-analysis-of-draft-it-rules-2021/
7.
https://blog.forumias.com/critical-analysis-of-new-it-rules-2021/
11. https://blog.ipleaders.in/rules-2021-impact-blanket-privacy/
14. https://thewire.in/tech/explainer-how-the-new-it-rules-take-away-our-digital-rights
[1]. 3rd year,
B.A.L.L.B, Punjab School of Law, Punjabi University, (Patiala), manvimoudgil28@gmail.com
[2]. The better India, https://www.thebetterindia.com/138354/tripura-cm-mahabharat-internet-history-india/ (last visited 16 July, 2021)
[3]. Information
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[4].
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[5].
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[6].
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[7].
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(last visited 17 July, 2021)
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(last visited, 2021)
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