From UPSC perspective, the following things are important :
Prelims level : Provisions of IT Rules 2021
Mains level : Paper 3- Issues with IT Rules 2021
The article highlights the issues with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
Important provision made in the IT Rules 2021
- The Rules mandate duties such as removal of non-consensual intimate pictures within 24 hours.
- The rules also mandates publication of compliance reports to increase transparency.
- Rules provides for setting up of a dispute resolution mechanism for content removal.
- It provides for adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.
Issues with the rules
1) Affects right to free speech and expression
- The Supreme Court, in the case of Life Insurance Corpn. Of India vs Prof. Manubhai D. Shah (1992) had elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’.
- So, the rules need to be critically scrutinised for the recent barriers being imposed by it.
2) Violation of legal principles
- The rules were framed by the Ministry of Electronics and Information Technology (MeiTY).
- However, the Second Schedule of the Business Rules, 1961 does not empower MeiTY to frame regulations for digital media.
- This power belongs to the Ministry of Information and Broadcasting.
- This action violates the legal principle of ‘colourable legislation’ where the legislature cannot do something indirectly if it is not possible to do so directly.
- Moreover, the Information Technology Act, 2000, does not regulate digital media.
- Therefore, the new IT Rules which claim to be a piece of subordinate legislation of the IT Act, goes beyond the rule-making power conferred upon them by the IT Act.
- This makes the Rules ultra vires to the Act.
3) Deprives the fair recourse to intermediary
- An intermediary is now supposed to take down content within 36 hours upon receiving orders from the Government.
- This deprives the intermediary of a fair recourse in the event that it disagrees with the Government’s order due to a strict timeline.
4) Privacy violation
- These Rules undermine the right to privacy by imposing a traceability requirement.
- The immunity that users received from end-to-end encryption was that intermediaries did not have access to the contents of their messages.
- Imposing this mandatory requirement of traceability will break this immunity, thereby weakening the security of the privacy of these conversations.
- This will also render all the data from these conversations vulnerable to attack from ill-intentioned third parties.
- The threat here is not only one of privacy but to the extent of invasion and deprivation from a safe space.
- Recent data breach affecting a popular pizza delivery chain and also several airlines highlights the risks involved in such move in the absence of data protection law.
- Instead of eliminate the fake news, the Rules proceed to hurriedly to take down whatever authority may deem as “fake news”.
5) Operational cost
- The Rules create additional operational costs for intermediaries by requiring them to have Indian resident nodal officers, compliance officers and grievance officers.
- Intermediaries are also required to have offices located in India.
- This makes profit making a far-fetched goal for multinational corporations and start-up intermediary enterprises.
- Therefore, not only do these Rules place a barrier on the “marketplace of ideas” but also on the economic market of intermediaries in general by adding redundant financial burdens.
Consider the question “What are the challenges associated with the social media? How the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 will help is dealing with these challenges? What are the issues with these rules?”
Democracy stands undermined in direct proportion to every attack made on the citizen’s right. The IT Rules 2021 have tilt towards violation of rights. Therefore, these rules need reconsideration.