Critical Analysis of New IT Rules 2021

Synopsis: Government released new ‘IT (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’. There are many flaws in these rules that require urgent attention.

Background

• Recently the centre introduced the ‘Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) new IT Rules 2021’ to regulate all types of digital platforms.
• For framing the new rules, the government has referred to the 2018 Prajjawala case. Where the supreme court had observed that the Government of India may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications.
• The new rules force digital news publishers and video streaming services to adhere to a three-tier structure of regulation. It will have a government committee at its apex.
• It is feared that the new rules will have implications for freedom of expression and the right to information.

What are the issues in the new IT rules 2021?

• First, the new rules have increased the censorship of Internet content. Moreover, it mandates compliance with government demands regarding user data collection and policing of online services in India.
  • • Rules are framed in the absence of open and public discussion and without any parliamentary study and scrutiny.
• Second, the new rules issued under the Information Technology Act appears to be unconstitutional. Instead of taking a legislative route, it was done by expanding the purview of the IT Act, 2000.
• Third, the ability to frame subordinate legislation is by its nature a limited, constrained power. An executive cannot use its rule-making power to issue primary legislation by itself.
  • • But, the government by enacting new Information Technology rules 2021 has increased the scope of subordinate legislation.
• Fourth, the new rules will also regulate digital news media, it is a prime source of news. Any government involvement could have a chilling effect on their free speech and conversations.

• Fifth, according to the new rules, any person having a grievance regarding the content in relation to the Code of Ethics can file his grievance.
  • • Literally, it will force a digital platform to take up any issue by anyone. This opens the floodgates for all kinds of interventions considering the fact that many digital news platforms are small entities.
• Sixth, the new rules have increased the compliance burden for social media platforms. For instance,
  • • Big platforms such as WhatsApp will have to appoint chief compliance officers. He/she will ensure the rules and the laws are followed. A nodal officer will also need to be appointed, for coordinating with the law enforcement agencies.
• Seventh, the new rules mandate the retention of user data by intermediaries for use by government agencies.
  • • The rules require messaging apps such as WhatsApp and Signal to trace the origin of the problematic messages based on a judicial order.
    • It raises uncertainty about adherence to such orders, as their messages are encrypted end-to-end.
• Eighth, the new rules provide for the registration of digital news sites with the Ministry of Information and Broadcasting. Further, OTT platforms are required to agree to a government-supervised “self-regulatory system”.
  • • However, under the IT Act, digital news service is not required to register. Similarly,  streaming video content has not been included under the ambit of the Cinematograph Act.

What is the way forward?

• Given the new challenges in digital content, some strict policy measures are needed. However, the centre decision to involve in the grievance redressal process as an apex body cannot solve these problems.
• Also, over-regulation will prove counterproductive in a country where the citizens still do not have a data privacy law.
• So, what is needed is the uniform application of laws to combat unlawful content that is already in place.

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