File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Information Technology Rule 2021: Curb or Empower The User's Right

The web has become an essential part of our lives with the advent of more modern innovations and advancements in the manner of correspondence. The benefits of digital innovation are enormous, and many aspects of modern life are entirely dependent on it. However, in some unsuitable hands, it very well could be more dangerous than an atomic weapon.

According to the IAMAI-KANTAR ICUBE 2020 research, the number of active internet users in India is expected to rise by 45% over the next five years, reaching 900 million by 2025, up from 622 million in 2020. Around 96% of people use the web for entertainment, 90% for communication, and 82% to access social media.

Approximately 45% have performed an online transaction, and 28% regularly shop online.[1] viewing such potential on February 2021 the information and technology (intermediary guidelines and digital media ethic codes) rules , 2021 (it rules, 2021) was notified by the ministry of Electronic And Information Technology (MEITY). It rules raise a number of questions, including whether they are constitutional, whether they are arbitrary, and whether they limit or amplify public opinion.

Explaining the IT Rule

Under the information and technology (intermediary guidelines and digital media ethic codes) rules , 2021 (IT Rules 2021)

Demands greater diligence from social media:
  • The IT rules (2021) require social media platforms to be more consistent with the content that serves as the foundation of their operations. The ministry of electronics and information technology will be in charge of social media rules.[2]
    1. Appoint a grievance officer
  • They must implement a grievance redressal process and dispose of illegal and inappropriate materials within predetermined dates.[3]
  • The grievance officer for the platform is in charge of taking complaints from users and finding solutions.
  • Within 24 hours, she/he must acknowledge receiving the objection, and within 15 days or less, she/he must properly address it.[4]
  • It should also be unable to access it or transmit it through any other methods on the site.
  • The privacy policies of social media platforms should make sure that users are cautioned against sharing copyrighted content and anything that could be interpreted as false and misleading, racially or ethnically questionable, paedophilic, jeopardising India's unity, integrity, safeguard, security, or sovereignty, or breaking any existing laws. Safeguarding user health and safety online, especially for women and children.[5]
  • Additional rule of significant social media intermediary
  • Significant social media intermediaries are those who have greater enrolled clients in india than a predetermined limit (ssmis). Ssmis are expected to take into account certain extra reasonable levels of investment, such as allocating particular staff for consistency, enabling the identification of the first originator of the data on its foundation under certain circumstances, and sending innovation-built measures with regard to a best-exertion premise to recognise specific types of content.[6]
  • Significant social media intermediary has to appoint a chief compliance officer, nodal conduct person, residential grievance officer they all have to be Indian resident.[7]
  • In the event that an offence involving Indians sovereignty and integrity occurs, identification of the "initial originator of the information" must be provided.[8]
  • There has to be a user verification mechanism [9]
  • Identify the source of fake news
  • Removal of unlawful information

If social media intermediary not follow the rules they don't enjoy the safe harbour protection under section 79 of it act 2000.[10]
  • Section 79 in the information technology act, 2000
  • In some circumstances, an intermediary is exempt from responsibility. A third party's information, data, or communication connection provided or hosted by an intermediary is not subject to liability, regardless of any restrictions of any currently in effect laws, subject to the rules of subsections (2) and (3).

Guidelines for OTT / Digital media platform under it rule 2021
  • According to the new regulations, OTT platforms must have a strong, three-tier grievance redressal procedure.[11]
  • A grievance officer on the OTT platform itself will act as the first level of regulation,
  • The second level will be an institutional self-regulatory organisation created by content providers and their associations.
  • An inter-departmental committee established by the MIB at the third level will supervise and hear appeals for decisions made at level two or if the MIB refers a complaint to the inter-departmental committee.
  • this self-regulatory organisation will be made up of industry specialists and will be led by a retired supreme court or high court judge or other notable figure in the sector.
  • Rules for categorising material based on intended audience, age range, themes, substance, tone, and impact are provided by the code of ethics defined in the rules. Additionally, it requires OTT platforms to take India's independence, security, and cordial relations into account.[12]
    • "u" is for appropriate for all ages,
    • "u/a 7+" is suitable for people aged 7 and up,
    • "u/a 13+" is suited for people aged 13 and up,
    • And "u/a 16+" is suitable for persons aged 16 and above
    • 'A' is limited to adults.
    • Access control systems must be implemented by OTT platforms for content rated u/a 13+ or above.
  1. Questioning the constitutionality of rule

    Since the Indian constitution is regarded as the ultimate law of the nation, all activities taken by individuals and organisations must comply with it. The constitution's provisions must be followed by every legislation made by the legislature. However, it appears that several sections in the it rules, 202 have been significantly altered from the original. In the 1967 decision of , the indian supreme court ruled that parliament may not modify any of the constitution's fundamental rights. [13]
    1. Violation of article 19
      Article 19(1)(a) gives everyone in the nation's people the right to freedom of speech and expression.

      Empowering all citizens to participate in the country's "political and social cycles" is a key element of a functioning democracy. There is enough room for articulation across all of a healthy democracy's systems (discourse, scholarly, telecom, and so on.). According to the rulings in the cases of Romesh Thappar V. The State Of Madras (1950) And Shreya Singhal v/s UOI (2015), the right to freedom of the press preserves the right to criticism, which is the pinnacle of a majority rule foundation like India.[14]

      In addition to violating the press's right to freedom of expression, these rules' grievance redressal process is not ideal. The parameters by which the mediators are required to bring down satisfied being griped about are extremely wide and ambiguous in nature[15], if they actually were to cater completely to every grievance and grumble as the instructions suggest. The press would suffer under the ambiguity of section 3(b) of the rules and this would obstruct its progress, eventually leading to the general public being denied access to any real news and issues, which restricts their right to information.

      However, the updated it regulations would revoke their privileges. Currently, citizens access networks like Facebook, twitter, Instagram, and WhatsApp to express their opinions. High restrictions on the freedom of expression in debate and the press will breed unspoken apprehension that will eventually lead to oppression. People would feel obligated in such circumstances and would speak only to get through rather than express their opinions.

      Democracy depends on intelligent, well-educated people who have access to information that enables them to become fully engaged in public life and to question governmental policies. Without any ability to express oneself freely, democracy will be threatened by these rules the public authority will grow overly powerful and will start serving a few couples instead of merely the general population.

      Additionally, there are a number of different ways to interpret the requirements that must be met before one can be expected to accept responsibility for breaking the law. What is immoral to one person may be moral to another. What violates the integrity and what doesn't depends on individual interpretations and cannot be objectively tested.
    2. Violation of article 21
      Article 21 the preservation of life and individual freedom no one may be deprived of their life or personal freedom other than in accordance with legal procedures.

      The supreme court of India has interpreted this article in innumerable different ways, and it contains a variety of liberties. Many different interpretations have been made of "life and individual freedom." "life" refers to the existence of living things and to living a dignified life; "individual freedom" refers to the right to express oneself. The epic court declared that the right to privacy fell under the ambit of article 21.[16]

      According to it rules, 2021, intermediaries will be required to identify the "initial originator"[17] of malicious messages. However, a few users can also transmit an identical message on their own, which results in a number of distinct forward channels for the same message. This results in a more significant framework problem. It is quite logical that a first forwarder-not an originator-will be apprehended or charged in accordance with the applicable laws. Some intermediaries offer "start to finish encryption," which means that they don't even read the messages that their clients send. However, under the new legislation, they must now alter their tactics.

      According to section 7, if the intermediary violates the rules in any way, section 79 (1) of the it act 2000, which ensures the intermediary's immunity (also known as the "protected harbour arrangements") stands dropped, and they can face prosecution under the Indian penal code, 1860. In order to function as the public authority's manikin and to maintain its immunity, the intermediary must cooperate with requests from the government to give our private information to them, putting our privacy and security at risk.

      Section 84a of information technology act, 2000 also recognizes "end-to-end encryption" to provide more security to the users but it rules 2021 says opposite of its parent act.
    3. Violation of article 14
      Article 14 equality before the law within the boundaries of India, the state must not deny anyone's right to equal treatment under the law or to equal protection of the laws. Prohibition of discrimination based on a person's birthplace, race, caste, religion, or sexual orientation

      The right to a fair trial, or "audi alteram partem," is both an institutional and procedural feature of article 14. The article is regarded as the bulwark against any capricious judgements and unbridled caution. This ignores the ordinary equity criteria as well, which is still closely tied to how any practises that are thought to be against fairness, justice, and common sense violate articles 14 and 21.

      Section 13, part iv of the it rules gives the secretary of the ministry the responsibility of giving advice to "persons, distributers, or intermediaries in charge of allowing such data, without granting them an opportunity to hear." the identical circumstances are typically not indicated and are simply referred to as a "crisis," all other things being equal.

      This violates not just the distributor's and the users of the specified substance's rights to know why their product has been taken down, but also their rights to a fair hearing and to be heard. This entitlement, which is consistent with law and order and the rule of natural justice , is reiterated and maintained by the MANEKA GANDHI V. UOI (1978) ruling.[18]

      This rule not only compromises both the equality of the concerned persons as well as their equal protection of the law.
  2. The Affect Of New It Rule 2021 On Our Digital Rights

    1. Traceability' and breaking encryption
      A large social media intermediary that gives help primarily in the concept of informing, such as WhatsApp, signal, telegram, and others, is now required to enable the identification of the originating source of the data under sub-rule (2) of rule 5 of the draught it rules, 2021.

      This demonstrates the need of traceability, undercutting end-to-end encryption. It should be noted that previous attempts to enable realistic tracking via end-to-end encryption have been shown to be vulnerable to mockery, as troublemakers may dishonestly change the original data to approach an innocent individual. Furthermore, the sender has no control over who forwarded the message or how frequently it was forwarded.
    2. Regulation' of video streaming platforms
      This administrative oversight system[19] is being created without any justifiable administrative support and will eventually take on responsibilities similar to those held by the ministry of information and broadcasting for tv regulations. For example, in line with rule 13(4), this now also includes monitoring powers, such as scrolls for expressing sorrow, as well as content hindrance! All of this is meant to be handled without the need for legislative oversight or justifiable regulatory endorsement.

      Any future law governing India's OTT video sector may be harmful to both individual liberty and the common welfare. India presently produces unique, high-quality video content that appeals to consumers both locally and internationally rather than just consuming it. It needs a mindset that thinks traditional film- or tv-based norms may irrevocably hurt the region in order to compete successfully with other nations like South Korea.

      Any such set of regulations will probably have a detrimental effect on residents' digital liberties, cause financial loss, and also have a detrimental effect on India's rising societal influence through the creation of current and contemporary video games and entertainment.
    3. Development of AI to automate censorship
      Furthermore, under sub-rule (4) of rule 5 of the draught it rules, a significant social media intermediary such as WhatsApp, signal, twitter, instagram, or facebook, among others was required to implement technology-based measures, such as automated devices or other mechanisms, to proactively identify data that depicts any demonstration or reenactment in any setting portraying assault, child sexual abuse, or lead, whether explicit or implicitly.

      Given the immaturity and flaws of artificial intelligence ai for the current state of the art of craftsmanship, the development of supervision artificial intelligence ai devices is rife with numerous risks. Because artificial intelligence ai "learns" so much information, it will undoubtedly be necessary for social media intermediaries to keep and review a lot of user-generated content that has no relation to the content that is being attempted to be censored.

      Furthermore, in ai development, coding biases generally result in separation, over breadth, a lack of accountability, and transparency. This is especially troubling considering that the ai aims to govern and monitor a client's basic right to free speech and expression. It is critical to thoroughly consider whether ai should be permitted to govern citizens' fundamental liberties.
  3. Ground that support rule

    In the case of justice K.S Puttaswamy (Retd.) And Anr. V. Union Of India (2018) supreme court of India held that no right is absolute there is reasonable restriction.[20]
    1. Does IT rule 2021 is beyond the scope of IT act 2000
      As per section 2(w) of the it act, 2000, intermediary refers to any person who on behalf of another person, receives, stores or transmits that record or provides any service with respect to that record. OTT platforms with users in India above the notified threshold, have been classified as significant intermediaries by providing different content to consumer, and therefore they come within the ambit of intermediaries under the it act, 2000 moreover section 87 of the it act, 2000 gives central government the authority to legislate rules for carrying out the provisions of the act, thus these rules have been enacted so as to give effect to certain provisions of the it act, and therefore since OTT platform qualify as a significant intermediary, they are bound by the new rules, hence the ministry of information technology has the appropriate jurisdiction to regulate OTT platforms.
    2. Allegation that the said rules violate article 19 of the Indian constitution
      One of the allegations put upon the said rules is that it shuns the right to freedom of speech as provided under article 19(1)(a) of the Indian constitution, however this allegation is vague and baseless. The new rules do not violate the freedom to speech and expression, they only place reasonable restrictions i.e. Restricting contents which might be obscene to the public at large, or hurt any religious sentiments (punishable under s. 298 of the Indian penal code, 1860) or cause public unrest as was the case with the film 'political heist', etc. As provided under article 19(2).
    3. Allegation that the said rules violate article 21 of the Indian constitution
      For the final allegation that the said legislation violates the right to privacy as enshrined under article 21 of the Indian constitution, 'by enabling the identification of the first originator of the information on its computer resource' � as mentioned under section 4(2) of the new it rules, it is humbly stated that the said legislation does not violate right to privacy.

      The procedure for enabling the identification of the first originator of the information is only done as a method of last resort, moreover the offences which would attract such a last resort are the ones as mentioned under s.69a(1) of the it act, 2000. In the landmark judgement of 'Justice K.S. Puttuswamy (Retd.) And Anr. V. Union Of India And Ors .the 9 judge bench of the hon'ble supreme court stated the following[21]

      Therefore, implying that reasonable restrictions can be put on right to privacy, grounds being those mentioned under article 19(2) of the Indian constitution. Now since, the grounds as mentioned under 19(2) are in congruence to the grounds as stated under s.69a(1) of the it act, 2000 therefore, the said legislation does not violate the right to privacy, it only places reasonable restriction on it, moreover the identification procedure can only be started once orders from a court of competent jurisdiction have been received.
    4. Allegation that the said rules violate article 14 of the Indian constitution
      As per rule 10 & 11 of the said rules, for adjudicating upon the consumer grievances, 3 level grievance redressal mechanism has been formulated:
      1. Self-regulating mechanism (level i):
        where the publisher appoints a grievance officer who shall be responsible for the redressal of grievances received by him. The decision has to be communicated to the complainant within 15 days of the receipt of complaint.[22]
      2. Self-regulating body (level ii):
        there may be one or more self-regulatory bodies of publishers, being an independent body constituted by publishers or their associations. The body shall be headed by a retired judge of supreme court, high court or an eminent person having experience in fields such as child rights, entertainment etc. And have other members (not exceeding 6) being experts from the above mentioned fields. The main function should be to address grievances not addressed by the publishers within the specified 15 days, hear appeals against the decision of the publishers, oversee and ensure the adherence by the publisher to the code of ethics.[23]
      3. Oversight mechanism:
        this has to be formed by the central government so as to coordinate adherence to the code of ethics by the publishers and self-regulating bodies. The main function would be to publish a charter for self-regulating bodies, including codes of practices for such bodies as well as establish an inter-departmental committee for hearing grievances.[24]

Inter-departmental committee:
The ministry shall constitute an inter-departmental committee, consisting of representative from the ministry of information & broadcasting, home affairs, women & child development, law & justice, electronics & information technology, defence etc. The committee shall meet regularly and decide upon grievances against the decision taken at level i or ii, including cases where no such decision is taken within the time period.

In case the committee after deliberating upon any grievance is of the opinion that there is a need to take action, in relation to reasons as laid down under section 69a(1) of the information technology act, 2000 may recommend such action.
  • For the allegation of restriction to justice, it is stated that the grievance redressal mechanism (as mentioned above) provides for an alternative way to the citizens to sort out their grievances quickly and efficiently, and if even after that the consumers are not satisfied with the decision of the committee/intermediary, they can still approach the courts[25]
  • Moreover, the said laws were only formulated after the central government received complaints from citizens regarding various contents that were been exhibited on OTT platforms and even pleas were filed, seeking regulation of web shows and films[26]. It was only after these complaints were taken into consideration, that the said laws have been formulated therefore dismissing the allegations that the said legislation is arbitrary.

Stages that raise significant data and use it as a forum for citizen communication pique the citizens' intense interest. Privacy is a must. Without a doubt, India anticipated a rule and guidelines to control OTT and virtual entertainment. The new rules will significantly alter the legal landscape and liabilities facing mediators in India. Due to their significant impact on Indian users, OTT and social media must go through a proper regulatory cycle. There is great ambiguity between users and intermediaries.

India is perhaps the most democratic nation in the world, hence we shouldn't give up our fundamental freedoms. Therefore, monitoring social media material shouldn't invade our privacy. Since the government has the power to control, the test for arbitrariness should be used. It shouldn't interfere with someone's freedom to articulate themselves freely.

Automatic filtering mechanism results in the removal of large chunks of data from social media. It also causes mass surveillance. It also has an impact on privacy. Furthermore, the technical and financial burden on businesses in its implementation is significant. A balance between reasonable restrictions and privacy is required.

  1. India to Have 900 Million Active Internet Users by 2025, Says Report" (The Economic Times) accessed July 11, 2022
  2. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 2(l)
  3. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 3
  4. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 3(2)
  5. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 3
  6. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 2(v)
  7. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 4
  8. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 4(2)
  9. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 4(7)
  10. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 7
  11. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 9
  12. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 19
  13. Golak Nath v. State of Punjab, (1967) 2 SCR 762
  14. Shreya Singhal v. Union of India, (2015) 5 SCC 1
  15. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 18
  16. Justice K.S. Puttaswamy (Retd) v. State of Karnataka, 1997 SCC OnLine Kar 115
  17. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 4(2)
  18. Maneka Gandhi v. Union of India, (1978) 1 SCC 248
  19. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 13
  20. Justice K.S. Puttaswamy (Retd) v. State of Karnataka, 1997 SCC OnLine Kar 115
  21. Justice K.S. Puttaswamy (Retd) v. State of Karnataka, 1997 SCC OnLine Kar 115
  22. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 11
  23. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 12
  24. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, � 13
  25. "Government of India Ministry of Electronics and IT New ... -" accessed July 11, 2022
  26. Jha L, "SC Seeks Centre's Affidavit on Ott Content Regulation" (mintFebruary 16, 2021) accessed July 11, 2022

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly