IT Rules 2021 and Right to Privacy
We all have heard the news that WhatsApp, Instagram, and Twitter are going to be banned a few days back, but many of us don’t know what was the reason behind this news. So, let us now discuss what was the chaos all about.
On February 25th the government enacted The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, these rules are to replace Information Technology (Intermediary Guidelines) Rules 2011. According to the new rules the social media platform, referred as intermediaries in the article, has to set up the grievance redressal and compliance mechanism, an Indian grievance officer, chief compliance officer and a nodal contact person. These platforms are also required to submit monthly reports on complaints received from users and how many were resolved. Another requirement was for instant messaging apps like WhatsApp, these platforms are required to make provisions for tracking the first originator of the message.
If these intermediaries fail to comply with any of these requirements then this would take away the indemnity provided to these platforms under Section 79 of the Information Technology Act, 2000. This section provides a ‘safe harbour’ to the intermediaries according to which the intermediaries shall not be held liable for the actions of users on their platform as long as they adhere to the guidelines prescribed by the government. The protection under this section is not granted if the intermediaries despite being directed by the government does not immediately take down the material under question.
Why were these rules introduced?
Over a past few decades, our country has seen an increase in the usage of social media, as a result, the abuse or wrong usage of social media has also increased for: spreading fake news; circulating obscene content to harass women; marking defamatory statements, etc.
Supreme Court in the Prajwala v. Union of India & Ors. (2015), a suo moto writ petition, directed the government to work and frame necessary guidelines to eliminate child phornograpgy, obscene videos and images, from being posted on different platforms. After this the Supreme Court in Facebook v. Union of India & Ors. (2019), directed the Ministry of Electronics and Information Technology to adhere to the timeline for completing and notifying the new rules. An Ad-hoc committee of the Rajya Sabha was formed and it gave recommendations to have provisions to identify the first originator of the message pertaining to obscene contents which had the worst effect on the society.
Issues with these Rules
One of the major issues with these rules is they tend to violate our right to privacy. The new rules under sub-rule (2) of Rule 5 want that the intermediaries that provide services primarily in the nature of messaging to trace down the first originator of the message. This means that the intermediaries like WhatsApp, Signal, etc. that currently use end-to-end encryptions to protect the privacy of the users will have to break that. In tracing down the first originator of any message the intermediaries will have to store information and track down each and every message as it is quite uncertain which message the government will term as inappropriate in future. In this way the government is trying to use these intermediaries as a source of mass surveillance. One other major risk with this rule is that even if this is enforced it is not fool-proof and could easily lead to human right violations. The intermediaries will have to turn in the name of the people who even did not create anything and have just shared it out of concern or just sent it to check it truthfulness. If anyone simply downloaded an image or took a screenshot of it from an email or any other sources and then sent it on WhatsApp then he would be termed as the first originator. Because of this many innocent people would be caught up in investigations or can suffer trial and even jail for sharing something that was problematic in the eyes of the government.
The government is justifying itself by quoting the Facebook v. Union of India & Ors. (2019), but if these rules are implemented then they will be against the Supreme Court judgement in the case of Life Insurance Corpn. of India vs Prof. Manubhai D. Shah (1992). In this case supreme court elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’. The court further added that ‘any attempt to stifle, suffocate or gag this right would sound a death knell to democracy’ and would ‘help usher in autocracy or dictatorship’. So, it is very much important to critically scrutinize these barriers being imposed via these rules.
Digital News Media Issue
Another important issue is that these rules were framed by the Ministry of Electronics and Information Technology (MeiTY). But if we read the Second Schedule of the Business Rules, 1961, it does not empower MeiTY to frame regulations for ‘digital media’. Ministry of Information and Broadcasting is empowered to do so. Although MeiTY has claimed that these rules shall be administered by the Ministry of Information and Broadcasting but this action of MeiTY framing the rules violate the doctrine of ‘colourable legislation’. According to this doctrine “what cannot be done directly cannot also be done indirectly” this reflects that if the legislature cannot do something directly then it cannot do it indirectly. To elevate the problem at hand, the purview of the IT Act, 2000 does not cover or regulate the news media, so the rules does not have any legislative backing to regulate the news media. Therefore, these rules that claims to be part of the subordinate legislation of the IT Act, are beyond the rule making power conferred upon them by the IT Act. Hence, this makes the rules ultra vires to the act.
These new rules also desire to eliminate fake news, but the rules have not defined the ambit of the term ‘fake news’, instead the rules proceed to take down whatever the concerned authority may term as fake news arbitrarily. This arbitrariness would allow the government to use significant discretionary powers and censor media at their pleasure.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, are basically trying to change how the internet is accessed by millions of people across India. Many new rules that are being introduced can be termed as model of online surveillance and censorship. These rules coming at the time when people want to share less data does raise many concerns. The concern of government about the regulation of social media is not bad but these regulations coming at the cost of common people right to privacy is not a good idea. These rules also hamper the right to free speech, every time a citizen have to think before having a private conversation, to have an opinion, to dissent, would be a warning that our democracy stands undermined.
KTS Tulsi & T. Puri, “Ninepin bowling aimed at free speech, privacy”, The Hindu, 28th May 2021, at p. 6.
A. Aryan, “Explained: Social media and safe harbour”, The Indian Express, 2nd June 2021, available at, Explained: Social media and safe harbour | Explained News,The Indian Express.
S. Dhapola, “Explained: WhatsApp’s arguments to fight traceability clause in IT Rules 2021”, The Indian Express, 2nd June 2021, available at, Whatsapp Sues India Government: What are WhatsApp’s arguments to fight the traceability clause in IT Rules 2021 (indianexpress.com).
N. Alawadhi, “Right to privacy is not absolute, says govt on WhatsApp's lawsuit”, Business Standards, 26th May 2021, available at, Right to privacy is not absolute, says govt on WhatsApp's lawsuit | Business Standard News (business-standard.com).
At, IT Rules 2021 and its impact on blanket privacy - iPleaders.
At, Explainer: How the New IT Rules Take Away Our Digital Rights (thewire.in)
At, Video|IT Rules 2021 Infringe on Freedom of Speech, Privacy: Apar Gupta (thequint.com).
Archit Diwakar, a 1st-year law student at the Rajiv Gandhi National University of Law, Patiala.