Information Technology Rules 2021: A step towards making an Authoritarian State?

IT Rules, 2021
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Past few months have seen a major tussle between the government and the social media giants like Facebook and Google. A lot of issues regarding the new rules and their validity arose which are not yet settled. The social media intermediaries have many concerns which are still not resolved and their suits are pending in different courts. The Government of India through the Ministry of Electronics and IT framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 under section 87(2) of the Information Technology Act, 2000. The rule is a replacement to already existing Information Technology Rules, 2011. It was issued on February 25, 2021. The pertinent authorities were given a three month window to comply with the norms which ended on May 25, 2021.

What are Information Technology Rules, 2021?

The IT Rules, 2021 aims to set up a robust mechanism for grievance redressal. This would apply to the “significant social media intermediary”, i.e. the platforms having more than 5 million registered users in India. For this, the intermediaries have to set up a three tier system to observe due diligence and compliance with the rules. The Chief compliance Officer, who should be a resident of India would look after overall compliance. The Nodal Contact Person, again a resident of India to coordinate with the law enforcement agencies 24*7. And a Resident Grievance Officer to comply with the mechanism set up by the government.

The significant social media intermediaries, which provide messaging services shall enable tracing out the first originator of any given information. It further says that only limited information that would concern the following issues would be asked:

  1. Sovereignty and integrity of India.
  2. Friendly relations with other states.
  3. Security of the nation.
  4. Inciting offences relating to or above rape, child sexual abuse etc., punishable for not less than 5 years.

The ministry also aims to regulate the digital media and OTT and various creative programs on internet. Mostly they are directed to set up a self-regulatory mechanism. This would include verifying users for Adult content and setting up parental locks. A new certification criteria for these platforms has been issued. They also need to have a three level grievance redressal mechanism complying the guidelines issued. The rules are framed keeping in mind various models followed by countries like Singapore, UK, USA and EU.

Why are the rules being criticized?

According to the issues raised by the concerned stakeholders, the rules are overpowering the government to regulate free speech and expression. The other prominent concerns are stated below.

Firstly, the rules are ultra vires in itself as it expanded the purview of the IT Act, 2000 to bring digital media under its ambit. The same could have been done through a legislative action which ensures debate and deliberation rather than directly issuing executive guidelines.

The guidelines ask the intermediaries to trace the original sender of any given message. This would break the immunity provided to the users through end to end encryption. And would also create a loop hole for hostile hackers. This amounts to invasion and deprivation of privacy of users. Whatsapp has also filed a petition with respect to this issue in the Delhi High Court.

The intermediaries are also not given sufficient time to comply with the new guidelines. Various industrial bodies including CII, FICCI USIBC have requested the government to extend the compliance window up to one year, keeping in mind the pandemic situations.

Constitutional validity of the rules has been challenged by various bodies like the Press Trust of India, and online portals like The Wire, Quint Digital media etc.

Way ahead

The new rules give a free hand to the government to curb voices of common people. The standards and criteria mentioned in the guidelines seems very arbitrary and vague in nature. For example, it says matters concerning integrity of the country, but does not mentions the list or type of matters, which in turn gives open hands to the government. There are several other privacy concerns and issues raised by different intermediaries and authorities. The most feasible way ahead should be better engagement from the side of government and a fruitful dialogue on this issue with the stakeholders. Also in my opinion the rules should have been passed with due deliberation of all the Members of the Parliament. The plausible way out of it is judiciary stepping in, until it’s too late and making a final decision out of this problem.   

3 thoughts on “Information Technology Rules 2021: A step towards making an Authoritarian State?”

  1. Pingback: Analysis of the new IT (Intermediary Guidelines and Ethics Code) Rules, 2021. - Dream Legal

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