HOW ARE THE NEW INTERMEDIARY RULES FRAMES UNDER INFORMATION

TECHNOLOGY ACT, 2000 VIOLATION OF INDIAN LAWS?

 Introduction: On February 25, 2021, the Ministry of Electronic and Information

Technology of India notified the Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules, 2021. The Rules now will bring government control
rather than regulations over digital news platforms and OTT video content providers.
Several requirements under them suffer from unconstitutionality and undermine the free
expression and privacy for millions of the internet users in India.
 Defining Social Media Intermediaries: The IT Rules 2021, under Rule 2(w) define
a social media intermediary as an intermediary whose sole or primary purpose is to
facilitate online interaction and activity between two or more users. This interaction
includes creating, uploading, sharing, disseminating, or accessing information by users
through their services.
IT Act, 2021 2(v), “significant social media intermediaries”, i.e., those having registered
users exceeding a minimum Rule requirement would come under the purview of specific
mentions in these Rules. The minimum user requirement to fall under this category was
notified by the government to be fifty lakhs and above. This would include social media
platforms like Twitter, Facebook, WhatsApp, and Instagram who have registered users that
significantly exceed the minimum threshold.
 Key Features of the Rules:
1. Social media intermediaries, with registered users in India above a notified threshold,
have been classified as significant social media intermediaries (SSMIs). SSMIs are
required to observe certain additional due diligence such as appointing certain
personnel for compliance, enabling identification of the first originator of the
information on its platform under certain conditions, and deploying technology-based
measures on a best-effort basis to identify certain types of content.
2. The Rules prescribe a framework for the regulation of content by online publishers of
news and current affairs content, and curated audio-visual content.
3. All intermediaries are required to provide a grievance redressal mechanism for
resolving complaints from users or victims. A three-tier grievance redressal
mechanism with varying levels of self-regulation has been prescribed for publishers.
 Key issues:
1. Grounds for restricting online content are overbroad and may affect freedom of speech.
2. Requiring messaging services to enable the identification of the first originator of
information on its platform may adversely affect the privacy of individuals.
 Violation of Indian Laws:
1. Free speech is a fundamental right guaranteed by the Indian Constitution; though,
the enjoyment of such right has seen arbitrary curbs in recent times and Freedom
 of expression is sanctioned by article-19 of the International covenant on civil and
political rights (ICCPR) and further, universal declaration of the human right
(UDHR), India is a signatory to UDHR and acceded to the ICCPR in 1948, 1979
respectively, over a period of time, the apex Court of India has consistently
acknowledged that principles the UDHR, as well as ICCPR, constitute India's
constitution fabric.
The court has also relied upon article 19 ICCPR'S three parts to assess restrictions
on freedom of expression in landmark verdicts, for instance, Navtej Singh Johar vs
India, and K.S. Puttaswamy vs Union of India. Interestingly, article 19 of the
ICCPR provides for freedom of opinion and freedom to seek, receive and impart
any information without interference.
With the intermediary Twitter being caught in the cross-fire of deleting posts
(tweets) to blocking accounts, blatant violations have been observed. The IT Rules,
2021 give enough leeway to the government to further restrict this freedom on
account of it being vague in language. Rule 3(b) lists out the categories of content
which can be disabled from access or removed from an intermediary platform by a
notification from an agency (authorised) of the Government.
The concern arises in the subjective nature of these categories. Material that is
defamatory, libellous, violative of public order, sovereignty, integrity or unity of
the nation is included in these categories. The subjectivity of these criterions is what
is unsettling about the provision. Deciding what is or is not violative of integrity or
unity for instance cannot be put to an objective test, which is why authorising the
Government to undertake such a decision may lead to an abuse of power. Any kind
of content that may go against a policy of the government in power can be
wrongfully classified under one of the above-mentioned heads and will have to be
taken down.
Understanding the powers that these rules confer upon the government against
users’ expression through social media platforms evidently showcases the chilling
effects it may have on the freedom of speech of the public.
2. Part II of the IT Rules, 2021 lays down the due diligence and grievance redressal
methods to be undertaken by these intermediaries. Within this arises concern of
breach in end-to-end encryption that intermediaries guarantee to their users. End-
to-end encryption is also legally recognized and protected under Section 84A of the
IT Act, 2000.
With the rising data privacy concerns, these encryptions have been ensured by and
strengthened on various platforms like WhatsApp and Facebook Messenger. Rule
4, sub-rule (2) of IT Rules, 2021 directs “significant social media intermediaries”
to have a mechanism in their interface that would allow identification of the “first-
originator” of certain messages (information) which have the capability of
“disrupting public order”, and even those that are against the sovereignty and
 integrity of the country or defamatory in nature. Such information can then be
provided on a request made through a judicial order passed by a competent court or
through an order passed under Section 69 of the IT Act 2000.
One of the problems with authorising the Government with access to information
regarding “first-originator” of a message is, the breach of end-to-end encryption.
For a message to be traceable, decryption is a prerequisite, and allowing such
decryption violates the encryption policy of platforms like WhatsApp, Signal, and
Messenger. Enabling traceability in any manner which is compatible, has been
previously dismissed on account of being susceptible to spoofing which means
providing unauthorised access to outsiders or even the government itself. This
raises severe concerns regarding user-privacy and their sharing of content on such
platforms after the implementation of the IT Rules, 2021.
Provision is that it is visibly conflicting to its parent legislation, the IT Act 2000.
Section 84A of the IT Act, 2000 empowers the government to provide encryption
methods which mean that it helps “secure” the use of electronic medium. Contrary
to this, the IT Rules, 2021, through Rule 4(2), provide for the weakening of such
encryption, violating the purpose laid down in the IT Act, 2000. Thus, such
handicapping of encryption which is guaranteed by intermediaries is indeed
problematic and hence raises legislative concerns.
 Conclusion: Therefore, the country has an obligation to ensure that its laws and policies
do not flagrantly violate the freedoms enshrined in ICCPR. However, certain provisions of
the new IT Rules purport to create an ecosystem where the right to exercise freedom of
speech in the digital space, a freedom guaranteed under ICCPR, would be seriously
jeopardised. It may provide the authorities with the power to censor Journalists who expose
information of public interest and individuals who report on human rights violations in an
effort to hold the government accountable.