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The document discusses the government’s February 2021 notification of new IT rules [Information Technology (Intermediary Guidelines and Digital Media Ethics Code) rules 2021]. The rules were drafted using powers granted under section 87 of the IT Act 2000, and equivalent provisions formerly found in the Information Technology (Intermediary Guidelines) Rules 2011 have been repealed.

The author has mentioned the salient features of new IT rules in brief. Further, it talks about the controversy and problems arising from such rules. It also includes the reasons for the need of such rules and government control. The author concluded by specifying observations made by the courts by mentioning some of the earlier cases and giving some suggestions in that regard as well.


On February 25, 2021, India’s Ministry of Electronics and Information Technology published the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules. A three-month deadline was issued to social media platforms to comply with IT requirements in 2021, which ended on May 25, 2021. On May 26, 2021, the government sent a letter to the major social media intermediaries, requesting information on their compliance status..[1]

In response, WhatsApp filed a lawsuit in the Delhi High Court, contesting Rule 4(2) of the IT rules. Other social media companies, including as Koo, Share-chat, Telegram, LinkedIn, and Facebook, have cooperated with some of the new IT standards and taken legal action against a handful..[2]

These regulations were put in place by the government to fight the spread of disinformation on social media platforms and to regulate material on streaming services. It is seen as a step toward ending fake news, child sexual abuse materials, and radicalization, among other social vices. However, few social media networks acknowledge it as a violation of our fundamental right to privacy, as described in Justice K.S. Puttaswamy v. Union of India.[3]  It might have an influence not just on free speech and corporate freedom, but also on user privacy and national security, according to them.[4]

In a Suo-moto writ case of  Prajwala [5], the Supreme Court ordered the Indian government to formulate guidelines to eradicate child pornography, rape and gang rape images, videos, and websites from content hosting platforms and other apps.

The country was eagerly waiting for the enactment of Data Protection Law by Parliament, after appropriate discussion and approval by a joint parliamentary committee, after the Supreme Court’s declaration of the Right to Privacy as a fundamental right. The world has seen the development of anti-encryption laws, which is raising alarm among individuals who cherish their privacy and wish to communicate freely. The Government of India is the most recent edition to make its debut in this arena, having taken on the responsibility of prescribing to enterprises how their privacy policies should be constructed and what repercussions would follow in the occasion of noncompliance.


There is a pertinent reason as why they are called rules and not laws. The government has made a paradigm shift in how the internet will work in India without bringing the issue before the Joint Parliamentary Committee for collaboration and consultation, and unless it strikes the right balance between people’s right to privacy and oversight, these new rules will stick out like a sore thumb. The government not only has amended the pre-existing laws but has also widened their ambit by adding OTT and Digital Platforms under it which were not previously included under the original law. This may be related to the case going on at the apex court regarding the PIL against the Amazon series TANDAV, at the time at which these rules were announced, but it’s still no justifiable to make such elephantine changes to the law without passing it through the parliament.

As its already quite clear from the ongoing protest against farm laws that passing a law from parliament does not guarantee an act as being accepted by the people and constitutional safeguard albeit to altogether skip the parliament proceedings is a deep cause of concern.


New IT guidelines would allow social media platforms to do business in India, but they would have to abide by the Indian constitution and laws. These guidelines empower users of social media platforms by providing a process for grievance redress and fast resolution. The proposed framework has been labelled progressive, liberal, and current. It aims to address a variety of people’s problems while dispelling any fears of stifling innovation and freedom of speech and expression.

Many social media companies have implemented fact-checking methods in response to issues such as the continual dissemination of fake news, widespread abuse of social media to post altered photographs of women, and content related to revenge porn. Abusive language, libelous and vulgar content, and disregard for religious feelings are all on the rise.

The expanding use of social media by criminals and anti-national elements for terrorist recruiting, distribution of obscene content, financial scams, and other purposes has posed new obstacles for law enforcement agencies.

Due to the lack of a comprehensive complaint procedure where ordinary users of social media or OTT platforms can lodge a complaint and have it resolved within a set timeframe, users have become completely reliant on the platforms’ whims and fancies. The person who spent time, work, and money to build the profile has little recourse if the platform removes it without allowing them the opportunity to be heard.

The guidelines give ordinary users of such platforms the ability to seek redress for their grievances and hold companies accountable if their rights are violated. Two occurrences are noteworthy in this regard:

  • The Supreme Court stated in the Prajjawala[6] case, in a writ petition order dated December 11, 2018, that the government may issue required guidelines to eliminate child pornography, rape films, and websites from content hosting platforms.
  • In an order dated September 24, 2019, the Supreme Court ordered the Ministry of Electronics and Information Technology to assess the timing for completing the process of notifying new rules.[7]


  • The Guidelines embrace due energy that ought to be followed by go-betweens, investigating for the web media focus people. Obstacle thereto has a cut-off conceded aftereffect of getting liberated from impediment permitted to go-betweens under area 79 of the IT Act.
  • The Principles try to engage the clients by ordering the mediators, including web-based media middle people, to build up a complaint redressal instrument for accepting settling grumblings from the clients or casualties.
  • Delegates will designate a Complaint Official to manage such grievances and offer the name and contact subtleties of such official.
  • Complaint Official will recognize the protest inside 24 hours and resolve it inside fifteen days from its receipt.[8]
  • It guarantees online security and respect of clients, particularly female clients by eliminating and debilitating the entrance of mediators inside 24 hours of getting of grievances of substance that uncovered the private spaces of people, show such people in full or fractional nakedness or in the sexual demonstration or is in the idea of pantomime including transformed pictures, and so on such a grievance can be recorded either by the individual or by some other individual on his/her benefit.
  • There are numerous laws to battle unlawful substances that are as of now set up. The new guidelines conceive bringing their uniform application.
  • A distributor and automatic body are additionally needed to make valid and complete honesty of all complaints received by it, the way wherein complaints are discarded, the activity taken on the complaint, answer shipped off the complainant.
  • In case of non-recognition of the principles of Mediator Rules by a middle person, the arrangements of sub-area (1) of segment 79 of the IT Act won’t be material to such delegate and the go-between will be at risk for discipline under any law for the time being in power remembering for agreement with the arrangements of the IT Act and the Indian Corrective Code.[9]


Rule 2 is a defining clause that provides a concise explanation for terms like –

‘Social Media Intermediaries,’ according to Rule 2(w), are intermediaries whose primary or sole purpose is to facilitate contact between two or more users by allowing them to create, upload, share, disseminate, alter, or access information through its services.

Significant Social Media Intermediaries are defined in Rule 2(v) as intermediaries with a number of registered users in India exceeding the threshold declared by the Central Government (the user threshold has been set at fifty lakhs and above). [10]


Part II of the These New Rules specifically dictates that due diligence to be undertaken by an intermediary including social media intermediary and significant social media intermediary. These obligations are inescapable in nature.

According to Rule 3(a), an intermediary must clearly display its user agreement, privacy policies, or laws and regulations on either its application or website, or both. The following are some notable examples of material provided under Rule 3(b) that has created dissatisfaction and is considered unsatisfactory by the government:

  • If the content is pornographic, obscene, paedophilic, or defamatory in nature;
  • If it is invasive of another person’s privacy, including bodily privacy, insulting, or harassing on the basis of gender;
  • If the content being shared is racially or ethnically objectionable or libellous in nature; 
  • If the content relates to or facilitates money laundering or gambling, or is otherwise in conflict with or contrary to Indian law.
  • If the addressee’s content deceives or misleads the recipient regarding the message’s origin point.
  • If the addressee actively and knowingly conveys any misleading or plainly incorrect information and passes it off as reality.
  • If the content uploaded endangers India’s unity, integrity, defence, security, or sovereignty, friendly relations with foreign states, or public order, or incites the commission of any cognizable crime, hampers the investigation of any crime, or insults any foreign state..[11]
  • If the content was provided with the goal of harassing or deceiving a person, agency, or entity in order to injure someone or achieve financial advantage through a written or published article that was false and blatantly inaccurate.


The platforms were classified into two categories: social media intermediaries and prominent social media intermediaries (in which there are more than 50 lakh users).

Few laws apply to all intermediaries, such as due diligence; the establishment of a Grievance Redress Mechanism; the online safety and dignity of users, particularly women users; and the establishment of a Grievance Redress Mechanism. It is necessary to implement a Voluntary User Verification Mechanism and to eliminate any unlawful information.

Additional due diligence is necessary solely for the Significant Social Media Intermediaries. Appointing a Chief Compliance Officer, a Nodal Contact Person for 24-hour collaboration with law enforcement authorities, and a Resident Grievance Officer are all part of this process. These three people should all be Indian citizens. It also has to produce a monthly compliance report, and the most contentious part is that Significant Social Media Intermediaries who provide services largely in the type of message must be able to identify the first source of information when needed by law.[12]

Safe harbor provisions would not apply to the intermediary if due diligence was not done. However, the lack of Section 79 protection could lead to a situation where platform employees are held personally accountable for failing to guarantee that their company complied with those laws despite their fault. The safe harbor provision in Section 79 of the IT Act of 2000 prevents intermediaries like data service providers and website hosts from being held accountable for anything that users may submit.

Section 79 of the IT Act

“An intermediary shall not be liable for any third-party information, data, or communication connection made available or hosted by him,” the clause states. This section was created in response to a situation in which an IIT student sold an obscene video clip on in 2004. Along with the student, the website’s former chief executive officer was detained in this case. In 2005, the Delhi High Court held him accountable under Section 85 of the IT Act, but the Supreme Court overturned the verdict in 2012, and the IT Act was revised to add Section 79.

Media ethics code of digital media and OTT platforms

Content should be self-classified as U (universal), U/A 7+, U/A 13+, U/A 16+, and A (adult) according to the code of ethics for online news, OTT platforms, and digital media (adult). They must implement parental locks for content that is rated U/A 13+ or higher, as well as credible age verification measures for content rated for adults. Publishers of news on such platforms will be expected to follow the Press Council of India’s Norms of Journalistic Conduct and the Cable Television Networks Regulation Act’s Program Code..[13]

A three-level grievance redressal mechanism has been established under sub-rule (3) of Rule 8 in which:

  • Self-regulation by the Publisher: Publisher shall appoint a ailment Redressal law enforcement operate based in India who shall be guilty for the redressal of grievances regular by it. The law enforcement detective shall accept decree on every moan long-established by it inside 15 days.
  • Self-Regulatory Body: There may be one or new self-regulatory bodies of publishers. Such a departed shall be headed by a retired arbitrator of the Supreme Court, a notable set eyes on or free eminent responsibility and taste of not above than six members. Such a lions disclose will expand to facts with the sphere of in categorization and Broadcasting. This mass will deal with the reliability by the publisher to the indoctrination of Ethics and keep your mind on to grievances that acquire not be been resolved by the publisher in 15 days.
  • Control Mechanism: Ministry of in string and allotment shall put into words an management mechanism. It shall bring in out a charter for self-regulating bodies, good Codes of Practices. It shall launch an Inter-Departmental group for post-mortem grievances. 


As the term ‘Privacy’ is concerned, there is a famous case of Justice K.S. Puttaswamy v. Union of India[14]. On August 24, 2017 a 9-judges bench of Supreme Court gave a unanimous judgement affirming that the Constitution of India guarantees a fundamental right to privacy to each individual. In this case, the court has made the following observations which are mentioned below:

  • Privacy is a natural right that all human beings have. Human beings have the power to make decisions at their core.
  • Privacy is a non-negotiable requirement for exercising constitutionally protected personal liberty and freedoms.
  • Privacy is an element of liberty under Article 21 and a constitutionally protected right, according to the court. The exercise of privacy gives meaning to articles like 19(1), 20(3), 25, 28, and 29.

WhatsApp filed a lawsuit based on this decision, primarily challenging Rule 4(2) of the IT Rules of 2021. Can we, however, assert that the rule requiring social media platforms to provide the original originator’s information is a violation of our right to privacy? Let’s have a look at some court rulings in this area.

In the case of Govind Vs State of Madhya Pradesh .[15], The Supreme Court’s three-judge bench ruled that privacy-dignity arguments should be scrutinized carefully and dismissed only where a compelling competing interest can be demonstrated to be greater. If the court decides that the acclaimed right to privacy is protected as a fundamental right, any law that violates it must pass the compelling state interest test.

In another case of Rajagopalan v. State of Tamil Nadu[16], The court stated that an individual has the right to privacy and that no one has the right to publish anything about another person without his consent, regardless of whether the material is factual or false, critical or laudatory, unless it is part of the public records.

In addition, the Supreme Court stated in 2018 that the government may issue required instructions to delete child pornography, rape, and gang rape imageries, among other things, from content hosting platforms and other platforms..[17]

 After investigating the worrisome issue of pornography on such platforms and its impact on children and society as a whole, an Ad-hoc committee of the Rajya Sabha issued a report in 2020, recommending that the creator of such contents be identified. In addition, the government has placed all OTT platforms under the Ministry of Information and Broadcasting’s jurisdiction.

In addition, Google has requested an injunction against its search engine, which is being categorised as a “major social media intermediary.” Google argued the court that it is only an aggregator and not a social media mediator. Despite the fact that no decision has been made in this regard.[18]

When Twitter adheres to the new Information Technology (IT) guidelines, it will no longer be protected from liability under Section 79 of the IT Act, which exempts social media companies from liability for third-party content. [19]


Certainly, the new regulations put a lot more pressure on social and digital media businesses, but they also have ramifications for individual users. While huge social media corporations like Facebook, Twitter, and others will now be required to answer complaints about the content on their platforms and remove any offending materials, the user who first uploaded the false or harmful information will be held responsible.

End-to-end encryption will be phased out in favour of automated techniques that examine communication content and detect offensive information. This means that an intermediate will need to create a system that can inspect the content of communications. It’s unclear whether it’s technically feasible and viable for a system to pick out specific content while completely ignoring the rest; this is a completely technological solution that should be left to the professionals. At the time, this is merely a suggestion from the administration, not a mandatory necessity. It will be interesting to watch if it is made required at a later time.


While we take things like texting and social media privacy for granted, with apps like WhatsApp allowing people to sometimes abuse the networks for their own gain, the new laws threaten that anonymity.                                         

Individuals who were once able to share rumours, unlawfully obtained or altered digital material, and other immoral/illegal info without fear of repercussions no longer have that level of anonymity. Companies will be obligated to provide your name to the proper authority if you propagate falsehoods or wilfully harm national security or the dignity of a person or group of people.

Before these Rules, the Information Technology (Procedure and Safeguards for the Interception, Monitoring, and Decryption of Information) Rules, 2009 didn’t involve intermediaries to comply with impossibilities; instead, they were only required to give technically viable help. That is meant to transform with these Rules, as it is currently allegedly impossible to trace the source of a communication. Such rules may very well aid law enforcement agents in pursuing material that has been shared that the government deems offensive. They may also endeavour to actively block anything that is detrimental to the government’s interests. This is the framework that the government just published, and there are still a lot of wrinkles to be smoothed out, as with much of public policy. Because these rules are an update to the IT Rules of 2011, they do not need to be adopted by Parliament and will be implemented as soon as the Centre finalises the details, such as fines, exact quantum of duty, and other variables.


The authority’s improper consultations are one concern. The Ministry of Technology and Information Technology drafted rules and sought public input on December 24, 2018. There were 171 comments made by individuals, civil society organisations, and trade organisations. The problem stems from the fact that 171 is a relatively low number.

The key point of argument is whether these limitations violate users’ right to privacy and freedom of expression online. WhatsApp, which is owned by Facebook, has also launched a lawsuit against the government, alleging that the new limits infringe on Indians’ right to privacy and that intermediary measures should be declared illegal. According to them, it infringes on the basic right to privacy since it fails to meet the Supreme Court’s three-part criteria of legality, necessity, and proportionality. They further contended that determining the first source of information is a breach of the fundamental right to freedom of speech and expression, as well as the parent provision (Section 79 of the Information Technology Act 2000).[20] They further claimed that it compromises privacy by allowing for “traceability” and circumventing encryption clauses. Traceability proponents argue that it is the only option to combat “fake news” and track down the source of illicit content. Experts have suggested, however, that these measures are ineffective and that there are various additional techniques that might be used to circumvent any such tracking..[21]

According to the rules, any platform is free to enter India, but it must accept all of the country’s criteria. The government wants them to use Artificial Intelligence to identify the originator, which is a technology-based identification.

Another topic of contention is the Information as well as Broadcasting Ministry’s oversight structure. Many people have questioned this because the ministry’s role and regulation has expanded significantly. Is this a sign of increased censorship and government oversight?


In a democracy like India, we’ve granted the government this authority to preserve our privacy while simultaneously ensuring public safety. It is critical for a government to guarantee both of these things to its residents. Government control in a country is also necessary to maintain everything on an even keel, but dictatorship should not be the result.

In the current situation of a worldwide pandemic, with increasing frauds and anti-national elements, government supervision is unquestionably necessary, but only to a certain extent. It should not go beyond what the Indian people want, i.e., it should not be at the expense of people’s privacy. Only when law enforcement and the general public work together can true public safety be attained.

Although Koo, an Indian platform, has already complied with the new requirements, other companies with headquarters in the United States have requested extra time to make their decision. Facebook has also stated that it intends to follow the new guidelines.[22]


The new legislation would radically change the legal landscape in India, as well as the liability of intermediaries. Significant social media intermediaries have less than a month to comply with the laws, which may require technologically complex changes to their platforms.  The government has attempted to regulate the long-standing difficulties of social media with the new Code, but there are some things that will only evolve with time. Intermediaries will now bear a greater share of the compliance burden. Data 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 attitude year after year to protect consumers’ privacy rights.

The right to speak freely of discourse and articulation is the fundamental principle of any popular government. Notwithstanding, no opportunity is supreme or totally unlimited. The basis of finding some kind of harmony between principal rights and learning the sensibility of a limitation has been a steady exertion since the appropriation of the Constitution. The discussion has now arrived at the advanced world. The on-going tussle between private, tech monsters who own a significant measure of Big Data, governments envious of forcing sensible limitations and clients stressed over issues identifying with information protection and imperatives on the right to speak freely of discourse and articulation, is probably going to get more confounded before ideal arrangements can be shown up at. The IT Rules 2021 look to address worries of the residents without encroaching on their protection and individual freedoms, while keeping up advanced sway simultaneously.

With the New IT Rules, 2021 government has tried to answer the long pending issues of social media, but has presented it with too many loopholes for the bad elements of the society to take advantage of; without much of consultation from the experts in the field of AI; sliding these rules through the back door stretching their legislative powers. These rules in the long run poses a real threat to the blanket privacy and raises some alarming issues of safety even for the state. People will be eagerly waiting for the Data Protection Bill, which is pending before Joint Parliamentary Committee, to finally pass, and then to mediate any conflicts if any arises between the two, it will be amusing to see which, if any, will prevail.


There would be no change in the way you connect with any social media platform on a regular basis, as long as you aren’t infringing any rules or community guidelines with offensive or harmful posts, and this was indicated to be very much within the scope of forceful action, legal or otherwise. If you have a problem with one of these platforms’ grievance redress systems, the resolution will now have to be faster and they will have to be more responsive. India is a significant market for all of these social media platforms, and it will be interesting to see how they move, particularly in light of WhatsApp’s lawsuit against the government.

India, being no longer a consumer but a producer of original high-quality content which provides employment as well as entertainment to audience internally and globally, competes actively with other countries, needs an environment that recognizes it and such regulations could harm this sector, as pointed out by many experts.

Privacy and public security both should be taken into account by the government and different platforms and nothing should be compromised upon by the citizens of the country. There is a need for the uniform law that would be compatible with the international privacy laws as the flow of data has become trans-national due to globalization. There is also a need for everyone including government and platforms to have more clarity on the rules and together go ahead with it instead of guessing and playing on such rules.


  1. The Information Technology Rules 2021: An assault on Privacy as we know it, Available at :

[1] “An Update on India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”, available at:

[2] “New IT rules: 7 social media platforms comply with some guidelines; Twitter drags feet”, available at:

[3] Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.

[4] “An Update on India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”, available at:

[5]  Prajwala v.Union of India (UOI) and Ors Petition (Civil) No. 56 Of 2004  (2015)

[6] Ibid

[7] “Masterstroke by the government of India to protect the rights of users in digital media”, available at:

[8] India: Salient Features Of The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021, Available at:

[9] New IT Rules 2021 – Drishti IAS,Available at:, (Last visited on 5 June ,2021).

[10] New IT Rules, 2021- Notification dated, the 25th February, 2021 G.S.R. 139(E): the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 | Ministry of Electronics and Information Technology, Government of India (

[11] Who Gets To Decide What Is Legitimate Free Speech — Big Government or Big Tech? | The Fletcher School (

[12] “FPJ Explains: What are the Centre’s new rules for social media and digital content?”, available at:

[13] “FPJ Explains: What are the Centre’s new rules for social media and digital content?”, available at:

[14] Supra Note 3.

[15]   Govind v. State of Madhya Pradesh 1975 SCR (3) 946.

[16]   Rajagopalan v. State of Tamil Nadu 1994 SCC (6) 632.

[17] Supra Note 5.

[18] “Google says India’s new IT rules not applicable to its search engine”, available at:

[19] Twitter loses legal protection, fails to comply with new IT rules, available at :

[20] “ETtech Explained: Government rules on WhatsApp & the controversy around it”, available at:

[21] “From social to antisocial: How the new IT rules will accelerate India’s democratic decline”, available at:

[22] “FPJ Explains: What are the Centre’s new rules for social media and digital content?”, available at:

Author: Suvansh Majmudar, Amity Law School Noida

Editor: Kanishka VaishSenior Editor, LexLife India.

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