Constitutionality of Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021: In Reference to Article 19 & Article 21

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INTRODUCTION:

In our life, the Internet has a significant influence it has made everything just a single click away. We are always surrounded by mobile, computers and several other electronic devices. You may really feel a slave to these technologies occasionally. Internet and technology are both favorable and not so favorable for us. Various social networking sites and applications have made it possible to connect to the world. Facebook, WhatsApp, Instagram, Snapchat, Twitter are some of the many famous apps which have helped people to not only communicate but also to raise voice against injustice. Today, social media have not only become an entertainment medium, but also an arena for business and trade. It has also upheld the fundamental requirements of information transmission and has given people room to express their views and opinions freely.  As these platforms have given absolute rights to their users to post things, this has also resulted in communal tension, seditious posts, misleading information and also inappropriate contents including pornographic images and videos.

The Ministry of Information, Government of India, on 25th February 2021 passed “Information Technology (Intermediary Guidelines and Digital Ethics Code) Rules, 2021.”[1] The Government’s rationale is to monitor the misuse of these platforms since practically everyone now has Internet access and not everyone is using it properly.

IT RULES, 2021: Important Provision

“Section 87 of the Information Technology Act, 2000” gives power to the Government to make rules regarding the IT Act. Government in February 2021officially notified about the rules and also welcomed comments and counter comments from the public. The main object of the Rules is to regulate the social media bodies and to make them obey the Constitution of India.

The IT rules of 2021 divided the intermediaries from social media into two groups. The following are two categories:

  1. Social media intermediary– means “an interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.”[2]
  2. Significant social media intermediary- means “a social media intermediary having number of registered users in India above such threshold as notified by the Central Government. The platforms which have more than 50 lakh users are called significant social media intermediary.” [3]Facebook, WhatsApp, Instagram are some of the examples which fall under this category. This intermediary category has specific regulations that are not applicable to the category above.

Rules which the intermediaries should comply to:

  1. Due Diligence- Part II of the IT Rules, 2021 deals with Due Diligence that should be followed by the intermediaries. Rules and Regulations made by the Government should be followed diligently by the intermediaries.
  2. Privacy Policy- Intermediaries by its privacy policy should inform its users that they should not upload, publish, transmit any kind of content which is defamatory, pornographic, promotes obscenity supports money laundering or gambling.
  3. Threatens the integrity of India- Any information or content that threatens the security, sovereignty, integrity of India would not be processed in accordance to the rule. In this circumstance, intermediaries must notify the user of suspension of their account or deletion of the information they have published or uploaded as not being in accordance with the privacy policy.
  4. Immoral or Unethical content- Any content which is unethical or immoral should be deleted by the intermediaries as described under Section 79(3) of the Information Technology Rules 2000. Furthermore, the interim party is obliged to preserve the specific information for a period of 180 days for investigative purposes after removal of such material.
  5. Deletion of Defaming content- The intermediary is forced to delete, within 24 hours, any information concerning a person’s complaint portraying a person in poor light or exposing the person’s private portion or displaying the person in sexual acts or in nudity. A complaint may be lodged by an individual himself or herself or by any other person on behalf of him/her.
  6. “Grievance Redressal Mechanism”- A person with a complaint concerning content of a publication in the context of the “Code of Ethics” may make a complaint following the procedure laid down under Rule 11. In a period of twenty-four hours after the complainant is filed, the publisher shall develop and issue the grievance acknowledgement.

Basically the redressal mechanism is three tier system. The following are its level:

  1. “Self Regulating Mechanism- Level I”- The intermediaries would set up a complaint remedy procedure and select a complaints officer also known as “Grievance officer” located in India to take charge of resolving the complaints received by him. The publisher shall ensure that, within fifteen days and within the time limit set, the Grievance Officer decides on each complaint it receives.
  2. “Self Regulating Body- Level II”- “The self-regulatory body referred to in sub-rule (1) shall be headed by a retired judge of the Supreme Court, a High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field, and have other members, not exceeding six, being experts from the field of media, broadcasting, entertainment, child rights, human rights and such other relevant fields.”[4] The body needs to register itself under the Ministry within 30 days of its formation.
  3. “Oversight Mechanism- Level III”- Oversight mechanism is established as supervisory measures. We have established supervisory measures to monitor things. Most organisations, institutions and companies – and certain governments – monitor their own activities so that they do not commit financial, legal, ethical or programmatic errors that endanger the effectiveness of their operations. An “Inter-Departmental Committee” will be established by the Ministry to look after the other bodies dealing with grievance mechanism. This committee will guide the intermediaries to maintain “Code of Ethics”.
  • Extra due-diligence Significant Social Media Intermediaries comply to:

Rule 4 mentions some extra due diligence which needs to be followed by “Significant social media intermediaries” other than Rule 3, those are:

  • “Appointing a Chief Compliance Officer to ensure compliance with the Act and the guidelines.” [5]
  • “Appointing a 24×7 nodal person to ensure compliance with their order or requests in line with legislation or rules issued under them and to coordinate with law enforcement agencies and officials.”[6]
  • “Appointing a Resident Grievance Officer who is resident of India.”[7]
  • “Provide a monthly report on periodic compliance with the contents of received complaints and measures taken.”[8]
  • “A significant social media intermediary that provides mainly messaging services shall enable the identification of the first originator on its computer resources.”[9]
  • “The significant social media intermediary shall enable users who register for their services from India, or use their services in India, to voluntarily verify their accounts by using any appropriate mechanism, including the active Indian mobile number of such users, and where any user voluntarily verifies their account, such user shall be provided with a demonstrable and visible mark of verification, which shall be visible to all users of the service.”[10]

The Right to Privacy Debate:

As said by Benjamin Franklin, “Without freedom of thought, there can be no such thing as wisdom – and no such thing as public liberty without freedom of speech.” In recent years, we have seen a phenomenal increase in the use of social media. The steady growth of social media platforms, such as Facebook, WhatsApp, Instagram and Twitter has proved to be mixed blessings. It has, first and foremost, broadened the array of political figures, programmes and goals, but also presented new and imminent difficulties for our democracy and people which led to the introduction of new “IT Rules, 2021”.

CHALLENGES UNDER ARTICLE 19:

Article 19 the Indian Constitution provides all citizens the freedom of expression and speech. A fundamental feature of functioning democracy is to enable all its citizens to take part in the country’s “political and social processes”. In a healthy democracy, there is adequate freedom of expression in all its forms (speech, literary, broadcasting, etc.). Clause 2 of Article 19 states exceptions to this Right. In the landmark case of Ramesh Thappar v State of Madras the Apex Court held that “according to Article 19(1) (a), freedom of expression includes freedom of propogation and propagation of opinions. It also ruled that the admissibility of legislative restriction of the right of freedom of speech was subject to very restricted and strict constraints. Usually, any regulation of the use of free speech must be consistent with one or more of the grounds set out in Article 19 (2).”[11]

Now, citizens have access to platforms like Facebook, Twitter, Instagram and WhatsApp for expressing their views but the critics believe that the new IT rules will take away their rights. Critics have argued that the IT rules will not only take their “Right to freedom of expression and speech” [12] but also “Right to Privacy”.[13] High restraint against the right to freedom of speech and the press will produce a fear factor that would silently be subdued to tyranny. In such a situation, people would feel constrained and endure rather than voice their views. Democracy depends on a well-trained, intelligent people whose access of information enables them to become fully involved in their society’s public life and to criticise policies of the government. Critics have argued that through this rules democracy will be jeopardised in the absence of liberties to express themselves freely. The government will grow too powerful and will not only serve the broad public but will serve a few.

Moreover the criteria under which one can be held liable for rule breaking is very vast and can be interpreted in many ways. What is immoral for someone can be moral for another person. What is against the integrity and what is not is subject to various interpretations and cannot be put to a particular test.

CHHALANGES UNDER ARTICLE 21:

“Article 21 of the Indian Constitution guarantees the right to life and personal freedom.” The Supreme Court of India has interpreted this article in so many ways and has varieties of rights within it. The word “life & personal liberty” has been interpreted in so many ways. The word “life” not only means animal existence but living a life with dignity, the word “personal liberty” means having the liberty to express oneself.

 “Right to Privacy” is one of the rights covered within the ambit of Right to life and personal liberty.[14] In the landmark case of Justice K.S.Puttaswamy (Retd) vs Union of India “constitutionality of Aadhaar Card was challenged on the basis of right to privacy before the nine judge bench of the Supreme Court of India. The petitioner before the court stated that the right to privacy is an integral aspect of the right to life and personal liberty in line with Article 21, and that it must be protected by the India Constitution as a part of the freedoms enshrined in Part III of the Constitution. The Apex Court held that right to privacy is integral part of the fundamental rights.  The Court also said that, fundamental rights cannot be granted or taken away by law and all legislation and acts must respect the Constitution, the state needs to balance the protection of the person’s privacy and the legitimate goal carefully.”[15]

According to IT Rules, 2021 the intermediaries which are required to identify the “first originator” of the mischievous message. However, several users can also send the same message individually, which leads to several, different forward channels of the same message. This leads to a more serious system problem. It is entirely likely that an initial forwarder – not an originator – will nonetheless be captured or prosecuted in accordance with the applicable laws. There are some intermediaries who provide “end to end encryption” which means even they don’t have access to the messages sent by their users, but now according to the new rule they will have to change their policy. 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.

CONCLUSION:

Social media have become an arena for business and commerce today not only as an entertainment tool. It also upheld the basic necessities of data exchange and allowed people free expression of beliefs and opinions. Since these platforms have given their members total freedom to post things, this has also resulted in community stress, defamatory remarks, deceptive information and inadequate content, including pornographic content. It is n cannot be denied that social media has increased the cyber crime rate especially against the women. The recent example of which is where Muslim women were targeted and auctioned off in a website. The details of them were taken from their accounts and were put on the website. This incidence not only instigated crime against women but also crime against women of a particular community which is clearly the result of communal hate.

21st century is the era of technology and internet and it is not going away. It can’t be denied that technology has made our life so much easy but we also cannot deny the misuse it has done to humankind. We are well aware of the power internet holds today; in one hand if it can help raise voice against the injustice on the other it can also mislead the audience. IT Rules 2021 were introduced to put a check upon the misuse of the internet. However the state should not constitutionally examine our right of using the internet to such an extent as it violates our right to freely utilise social media. With regard to the other purpose behind the implementation of this regulation, there is no doubt that it will assist to curb the excessive use of social media to abuse women, online frauds and other such things but this can all be controlled by other means. We do not need to put everyone in the same framework where people are restricted from expressing their views safely and openly on these platforms. In these times when meeting our friends and families is difficult for us, the social media is the sole instrument that bridges the distance and makes many of us easier to deal with the pressure.


[1] The Gazette of India, Ministry of Electronics And Information Technology Notification available at: https://www.meity.gov.in/writereaddata/files/Intermediary_Guidelines_and_Digital_Media_Ethics_Code_Rules-2021.pdf (last visited-July 18, 2021).

[2] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2(w).

[3] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2(v).

[4] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 12 (2).

[5] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4 (1) (a).

[6] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4 (1) (b).

[7] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4 (1) (c).

[8] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4 (1) (d).

[9] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4 (2).

[10] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 4 (7).

[11] AIR 1950 SC 124.

[12] The Constitution of India, art. 19.

[13] The Constitution of India, art. 21.

[14] The Constitution of India, art. 21.

[15] Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1.

Indrapreet Kaur Chhabra, Amity Law School, Amity University Chhattisgarh

Author:  Indrapreet Kaur Chhabra, Amity Law School, Amity University Chhattisgarh

Editor: Kanishka VaishSenior Editor, LexLife India.

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