Libertatem Magazine

New It Rules: On Legal Thin Ice

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Overview of IT Rules 2021

The Indian government has taken the first important step toward supervising major tech platforms. These new regulations apply to social media and over-the-top (OTT) applications in general. Under the Information Technology Act, the government’s new Intermediary Guidelines oversee platforms as well as how they function in India. These rules were drafted in response to powers granted under section 87(2) of the Information Technology (IT) Act of2000( See here ), and they supersede the previous Information Technology (Intermediary Guidelines) Rules of 2011(see here). This will be the first time that social media channels have been included in the Information Technology Act. Under the revised IT Rules, a grievance redressal system will be available for social media users to resolve their concerns. The provisions of the Constitution of India will have to be obeyed by social media networks. If any illegal content is broadcast, social media companies are now required to remove it within a timeframe given by a government agency or a court ruling.

Implications Of The New Information Technology Guidelines

  1. Negative Aspect of the New IT Rules

From the government’s perspective, there is a major issue, based on what the government claims about technological advancements, they wish to monitor website visitors on social networking sites. As a consequence, confidential data and freedom of expression are being jeopardized because WhatsApp (a large gateway) is now required to track and crack users’ end-to-end encoded clauses. The government has declared that we want the first source of any false or offensive content.

In Antony Clement Rubin v. Union of India, the Supreme Court is considering the issue of the traceability of data creators on encryption methods (T.C. Civil No.189 of 2020) (see here). During sessions before the Madras High Court, nevertheless, the attention switched to the traceability of data originators on end-to-end encrypted channels like WhatsApp, and the matter was eventually transferred to the Supreme Court. The IT Rules are the nation’s most significant increase of government speech control in the recent decade. A leaked study from the Group of Ministers on Administration Communication recently stressed the need to manage the narrative and limit opposition to the government. The laws also give the federal government the authority to intervene and regulate online streaming after it has gone through several stages of self-regulation. Ultimately, bureaucrats decide whether content is fit for consumption. It is indeed a turnaround from 2015, when India’s Attorney General said the authorities couldn’t perform moral policing if someone had been consuming content online (in that example, porn).

“These policies would undermine end-to-end encryption, significantly enhance monitoring, promote automated filtering, and split the Internet, harming users while failing to empower Indians,” In a blog post, Mozilla’s Public Policy Advisor, Udbhav Tiwari, stated. When the transmission emanates from outside India, the tracing process becomes considerably more difficult. In such circumstances, the ‘significant intermediary’ is required to identify the first source within India, a requirement that makes “an already eronerous process much more difficult.” Tiwari said (see here)


  1. Positive aspect of new IT rule

The new IT rules from the Centre were much-needed to ensure that online platforms are governed by the law of the land. The current regulations aim to strike a balance between the need for supervision to keep out unpleasant internet information that advocates violence and obscenity and the need to protect our founding principles and freedom of expression.

It has also attempted to put independent media portals under the jurisdiction of the print media’s code of ethics. The Press Council Act and the Cable Television Networks (Regulation) Rules, 1994 (see here), both establish journalistic standards. However, in order to protect creative license, the authorities have advocated self-regulation.

Do new it rule violate fundamental rights?

Various individuals around the country believe the IT Rules, 2021 are unconstitutional, vague, and conflicting. They also believe it has harmed the democratic process and has violated judicial authority by exerting powers beyond the scope of the jurisdiction.

There are issues that the IT Rules, 2021, will infringe on certain fundamental rights guaranteed by Part II of the Indian Constitution. This encompasses the right to privacy (Article 21) (see here), freedom of speech and expression (Article 19(1) (a)) (see here), freedom of the press (see here), journalistic expression, innovative thinking, artistic creation, and rights to digital news media.

First, the Central Government’s notification that OTT will be included within the Ministry of Information and Broadcasting and that IT Rules, 2021, would be formulated without parliamentary support was illegal. That’s because, under the Constitution’s provisions and basic structure, the executive cannot set laws unless it has been authorized by legislation. It was particularly established in the case of State of MP v. Takur bhagat singh (see here) that legislative delegation is extremely significant if the legislation being enacted might impede any basic rights or freedoms.

Incorporating OTT platforms in the definition of “intermediaries” in S. (2) (1) (w) of the IT Act, 2000( see here ), was a violation of the concept of “intermediaries”. In this context, an intermediary is someone who receives, stores, or transmits data on behalf of others. Furthermore, intermediaries do not own or create the content they broadcast or print, according to one of the intermediaries’ explanations in the paper titled “The Economic and Social Role of Internal Intermediaries.”

The proposed regulation of detecting and tracking the information of the first author of the information, which could be a challenge to the national security interests, sovereignty, and integrity, puts folk’s reasonable expectation of privacy at stake. The action of breaking encryption algorithms in order to retrace the data of the first source; once the encrypted methods have been cracked, cybercriminals can modify and manipulate the data. Individual privacy may be jeopardized as a result of this.

The new laws provide the relevant organization the power to keep the information of users who have revoked or terminated their memberships on these platforms. Individuals’ privacy rights are violated, as is their ‘right to erasure,’ per GDPR Recticles 65 & 66 (General data protection Regulation) (see here) . Users are constantly afraid of exercising their right to freedom of speech and expression or protecting their right to privacy due to the constant surveillance of information by SSMI (Significant Social Media Intermediary). If activists and abuse survivors’ existence are revealed, these policies act as a trigger of violence and harassment, infringing on their right to life.

Larger Framework and Its Legality

  1. Delegation of authority that is overly broad

The Rules contain an excessive amount of delegation of responsibilities. The Guidelines, for example, have developed a non-judicial adjudicatory method for resolving complaints about information produced by Digital News Media and OTTs. This is despite the fact that the IT Act doesn’t really expressly authorize the agency to do so.

  1. The IT Act’s regulatory authority has been broadened

Originally, the IT Act did not monitor internet news outlets or over-the-top (OTT) providers. With a declaration under the Business of Allocation Rules, this was amended. However, this statement just provides administrative precision as to which ministry will be in charge of the area. It does not provide you permission to use it. A specific legislative authorization is required for this. Rather than appealing to legislature, the Intermediary Rules enacted under the IT Act aim to widen the definition. The above corresponds to the executive modifying parliamentary law, which the Constitution prohibits.

  1. Self-censorship is advocated

At the first layer, publishing companies are required to self-regulate, but the Rules’ restrictions are too burdensome for self-regulation to be practical. Anyone can file a grievance with the publication, and the developer must answer less than 15 days or face disciplinary action. In respect as to what this implies for the average internet user, electronic news outlets will have to adjust their content to account for the capricious nature with which overbroad limitations are imposed, especially when the material is critical of the government.




The administration has attempted to regulate the long-standing difficulties of digital networking with the current framework; however there are some things that will only improve with time. Government oversight and the suo moto powers granted to the government to restrict any information under Section 69-A (1) of the IT Act,(see here), will enable the legislature all-encompassing authority and undermine the theory of checks and balances. Mediators will now bear a greater share of the compliance burden. Knowledge on the internet has grown to be enormously difficult to handle, and this will only continue to grow as time passes. With more nations implementing GDPR, India should go forward with a positive mindset year after year to protect consumers’ constitutional protections. So it can be reasonably said that though the laws are required to make the online platform safe the present law at a few places also compromise with our civil liberties.

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