Author: Ashutosh Yadav
Year of study: 1st
Institution of affiliation: Dr. Ram Manohar Lohiya National Law University
This article is set in the backdrop of the notification issued by the Ministry of Electronics and Information Technology dated 25th February 2021 which implemented the new The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) soon after which various petitions were filed against it. They were said to be violative of the fundamental rights and tried to limit the privacy of an individual on the Internet and provided excessive powers to the Government. This article tries to dig deep into the New IT Rules and tries to analyse the various rules and the various issues related to the same.
Keyword: – IT Rules2021, Digital Privacy, MeitY, Online Media
On the date of 25th February 2021, a notification was released by the Ministry of Electronics and Information Technology under the Government of India making new rules by using powers conferred to it under the sub-section (1), clauses (z), and z (g) of sub-section (2) of section 87 of the Information Technology Act, 2000. These rules are in furtherance with the Information Technology (Intermediaries Guidelines) Rules, which were issued in the year 2011. This was already hinted at by the Indian Express in one of its reports about the Government introducing a new set of IT Rules. However, one of the prominent questions related to this was the need for these new rules when the IT Rule 2011 was serving its purpose well. such questions were never answered by the Government on expected lines. adding to that, the other problems in the regulations caused quite a stir among the General Public. Many Social Media Giants, Online News Websites, and other activists heavily criticized them. Yet, the Government paid no heed to them, and the regulation was made operational which led to a plethora of PIL being filed in the courts all over India but mostly in the Delhi High Court.
Problems with the regulations
Firstly, the new regulations try to curb dissent and speech of the many online news media platforms and service providers by imposing liability on them. The term “intermediary” is used to refer to any service provider which transmits, hosts, and publishes users’ content without exercising editorial control over the content, so it can be your Internet Service Provider (ISP), E-mail service Provider, and various social media platforms where you post, upload, or share content. Also, in the sub-clause (viii) of Rule 3 provides that any post which is found violative of the “unity”, “integrity”. “defence”, “public order” cannot be posted, terms like these have a very wide meaning and they are wide open to multiple interpretations, therefore, providing exorbitant power to the government to censor anything under the garb of these words even if it may not fall under it in the truest sense.
Secondly, the drafted regulations under Rule 5 sub-rule (2) have made it mandatory for various social media intermediaries such as WhatsApp, Signal, Telegram etc which is primarily used as a messaging app to comply with the new rule of “the first originator of the information” which is in order to keep a track of the “originator” of the messages which are being shared in the apps, this also means that now the intermediaries must break their “end to end encryption”. Now, end-to-end encryption is an important feature that is used to prevent any third-party individual to read and access your file. It offers assurance to the user that their messages are kept private and encrypted so that even these service providers cannot access them. But now to keep a track of the “originator” of a particular message these companies would be accessing the message of every individual user and this very wall of privacy which assured users of their data privacy would be breached and this is ultimately violative of our digital privacy. It is important to note how Section 84 A of the Information and Technology Act 2000, encourages the central government to prescribe modes and methods of encryption for the purpose of “secure use of the electronic medium and promotion of e-governance and e-commerce” but on contrary, these new rules demands the end of encryption.
In line with the issue of traceability, in this case, a suit is still pending before the hon’ble Supreme Court in the matter of Antony Clement Rubin v. Union of India (T.C. Civil No.189 of 2020). Similarly, a PIL was also filed in the Madras High Court regarding the linking of Aadhar with social media but later the focus was shifted to the traceability and originators of information on end-to-end encrypted platforms such as WhatsApp, and the case was later transferred to the Supreme Court. on similar lines WhatsApp, a messaging app has filed a PIL in the Delhi High Court against them, where it is contended that these new rules were unconstitutional as they were violating the guidelines of the right to privacy laid down in the K.S. Putt swamy Judgement, where the right to privacy was held to be a facet of Article 21 and digital privacy falls within such rights, which therefore needs to be protected. Furthermore, Rule 7 which talks about the regulation regarding Video Streaming Platforms is included under the term of “applicable entities” which includes “publisher of news and current affairs “, Over the Top (OTT) Streaming Service Provider” and “transmission of the online curated content”. Also, under sub-rule (3) of Rule 8, the Rules lay down a three-tier structure for observance and adherence to the Code which is as follows, “Level I – Self-regulation by the applicable entity”; “Level II – Self-regulation by the self-regulating bodies of the applicable entities”; “Level III – Oversight mechanism by the Central Government.” What does this mean? It is most likely to bring stringent government oversight and more censorship. Most importantly, a similar kind of censorship is being done by the Ministry of Information and Broadcasting, so what is the need for such overlapping of function and which rule is going to have superiority is still an unanswered question.
Moreover, Rule 18 also introduces new regulations for the “digital news media”. These regulations categorize the “publisher of news and current affairs content” in a different category and subject them to certain restrictions. A similar issue was quoted in the case that was filed by a fact-checking website called Alt News. It contended that their website’s main work is related to fact-checking on the internet and going by the definition provided in the new IT Rules they do not fall under any of the categories specified in the Rules and are out of its purview. However, the Delhi High Court refused to provide any interim relief as of now and waited for the reply of the Central Government. Also, the printing of e-newspapers has been kept out of the ambit of these rules providing the big media houses which only publish in print an edge over the smaller and independent media houses that use the internet as a medium to spread their news. Therefore, pointing out the vagueness of the definition and the Government’s eagerness to curb free speech and independence of news media and censor it according to their will.
The Wire, an internet media channel that has filed a PIL on these grounds has pointed out that this new regulation is ultra vires to the parent act i.e., Information and Technology Act 2000. As under the Section 79 of the IT Act, which provides an exemption from liabilities in certain cases, therefore making these guidelines a hideous way of bringing the online news media under the aegis of the Information Technology Act, 2000 instead of following the due process of parliamentary scrutiny and subsequent legislation since it would have required the approval of the Parliament after much-needed discussion and deliberation, but through this process, the government sought to bypass that and introduced it after mere executive fiat.
What Lies Ahead
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 can change the way we Indians use it as our basic need. These new rules display a sense of online surveillance and censorship, rather than promising more freedom and security on the Internet. In these times where the Internet has become one of the prominent needs of an individual, it is high time to take Internet Freedom seriously and to take such steps as may be necessary to preserve it. The Rules clearly showcase how the Government has hurriedly and absurdly drafted these regulations. These rules tend to provide excessive powers in the hands of the Government, which will be used capriciously at times. It is important to see how the Hon’ble Courts of India would interpret them. In conclusion, these rules need to be amended to safeguard the digital rights of every individual, as these are attacks on how an individual uses the internet and if not amended at the right time it might end up making the “Internet” a mere property of the government rather than a tool which helps in the development of individual citizens.