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450 I Reports
India
Reading Regulation as a Prohibition: A Critical Review of the new IT
Rules 2021 in relation to Social Media Networks and Messaging
Applications
Ashit Kumar Srivastava*
I. Introduction
The recent introduction of the Information Technol-
ogy Rule 2021 (Intermediary Guidelines and Digital
Media Ethics Codes, hereinafter: IT Rules)' in the
digital legal framework and jurisdiction of India has
faced serious irritation with social media intermedi-
aries, especially regarding freedom of speech and pri-
vacy rights. The new IT Rules bring significant
changes for the obligations of intermediaries. While
in the former Intermediary Guidelines of 20112 the
responsibility of the intermediary was to appoint a
"Grievance Officer" to monitor the content posted on
their platform, and in case of a violation of the IT
Rules 2011 to terminate the account of the user, the
new IT Rules 2021 increase the responsibility of the
intermediaries: For example, "significant social me-
dia intermediaries" (hereinafter SSMI) have to com-
ply with additional due diligence obligations such as
to appoint a Chief Compliance Officer for ensuring
compliance with the IT Rules 2021 or to submit pe-
riodic compliance reports to the Ministry, as well as
face consequences in case of non-compliance. There-
fore, in order to properly grasp the impact of the IT
Rules, this report will analyse the normative changes
of the new IT Rules 2021 and their implications on
privacy rights against the standards of 'classic tools'
of the Indian Constitution applied in cases of free-
dom of speech and privacy issues generally.
II. Normative Changes
There are obvious deviations of the new IT Rules
2021 from the former 2011 Rules, and certainly, the
new IT Rules have given the authorities more oppor-
tunities to keep a check on the 'users' as to what is
being posted via social media, and what steps social
media intermediaries take to control this.
EDPL 312021
The most significant normative change to exam-
ine is the normative genesis of the IT Rules. They are
basically a subordinate legislation, meaning that they
are enacted under Information Technology Act, 2000
(hereinafter: IT Act) 3 by the Indian Ministry of Elec-
tronics & Information Technology. Already the sec-
tions of the IT Act invoked for the creation of both
IT rules differ significantly: While the IT Rules 2011
rely on section 87 and 79 (2) of the IT Act, the IT
Rules 2021 invoke section 87 only. To understand the
implications of this, it is important to underline that
section 79 (1) states that 'notwithstanding anything
contained in any law for the time being in force but
subject to the provisions of sub-sections (2) and (3),
an intermediary shall not be liable for any third par-
ty information, data, or communication link made
available or hosted by him'. If read carefully, section
79 is an exemption clause or a so-called safe harbour
clause, meaning that the intermediary shall not be li-
able for any third-party content hosted by the inter
mediary, provided the liability of the intermediary is
limited to and does not go beyond providing access
to a communication system and the intermediary ob-
serves due diligence. In simpler words, in these cas-
es the intermediary is not liable for the content post-
ed by a user on its platform.
DOI: 10.21552/edpl/2021/3/14
Assistant Professor of Law, Dharmashastra National Law Universi-
ty, Jabalpur. For correspondence: <ashit@mpdnlu.ac.in>.
1 Information Technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021, 25.2.2021, G.S.R. 139(E),
<https://www.meity.gov.in/writereaddata/files/Intermediary
_Guidelines-andDigitalMediaEthicsCodeRules-2021.pdf>.
2 Information Technology (Intermediaries guidelines) Rules, 2011,
11.4.2011, G.S.R. 313(E), <https://www.meity.gov.in/
writereaddata/files/GSR313 E_10511 %281 %29_0.pdf>.
3 Information Technology Act 2000, available at <https://www
.meity.gov.in/writereaddata/files/itbil12000.pdf>, as amended on
the 5. February 2009, <https://www.meity.gov.in/writereaddata/
files/it_amendment_act2008%20%281 %29_0.pdf>.
EDPL 312021
An analysis of this provision from the IT Rules
2021 - not relying on section 79 anymore - shows
that the central government indicated that social me-
dia intermediaries will be held liable for hosting con-
tent which is not desirable under constitutional prin-
ciples. Rule 7 of the IT Rules 2021 quite clearly states
that the intermediary would be held liable, if its plat-
form is utilised for hosting content prohibited under
the IT Rules 2021 and the intermediary has not fol-
lowed these rules to ensure its removal. 4
Thus, a lot of intermediaries have expressed criti-
cism for the new IT Rules 2021 in light of their manda-
tory nature. Similarly, not only have social media in-
termediaries been subjected to additional obligations
under the provisions of the IT Rules 2021, but pub-
lisher of news and current affairs content and pub-
lishers of online curated content. 5
Under rule 3 of IT Rules 2021, the social media in-
termediary, including SSMI, needs to prominently
publish on its website or mobile based application,
the rules and regulations, privacy policy and user
agreement for access or usage of its computer re-
sources while clearly highlighting the terms and con-
ditions about which content cannot be posted on the
platform. The social media intermediary, under Rule
3 (1) (b), shall also inform the user not to post, host,
display, modify, publish, transmit, store, upload or
share on its platform content:
(i) [which] belongs to another person and to which
the user does not have any right;
(ii) is defamatory, obscene, pornographic, pae-
dophilic, invasive of another privacy's including
bodily privacy, insulting or harassing on the basis
of gender, libellous, racially or ethnically objec-
tionable, relating or encouraging money launder-
ing or gambling, or otherwise inconsistent with or
contrary to the laws in force;
(iii) is harmful to child;
4 Rule 7 is worded 'Where an intermediary fails to observe these
rules, the provisions ofsub-section (1) ofsection 79 of the Act
shall not be applicable to such intermediary and the intermediary
shall be liable for punishment under any law for the time being in
force including the provisions of the Act and the Indian Penal
Code'
5 According to Rule 9 (2) notwithstanding anything contained in
this rules, a publisher referred to in rule 8 who contravenes any
law for the time being in force, shall also be liable for consequen-
tial action as provided in such law which has so been contra-
vened.
6 Network Enforcement Act of 1 September 2017 (Federal Law
Gazette I p. 3352), as last amended by Article 1 of the Act of 3
June 2021 ( Federal Law Gazette I p. 1436).
Reports I 451
(iv) infringes any patent, trademark, copyright or
other proprietary rights;
(v) violates any law for the time being in force;
(vi) deceives or misleads the addressee about the ori-
gin of the message or knowingly and intentional-
ly communicates any information which is patent-
ly false or misleading in nature but may reason-
ably be perceived as a fact;
(vii) impersonates another person
(viii) threatens the unity, integrity, defence, security
or sovereignty of India, friendly relations with for-
eign States, or public order, or causes incitement
to the commission of any cognisable offence or
prevents investigation of any offence or is insult-
ing other nation;
(ix) contains software virus or any other computer
code, file or program designed to interrupt, destroy
or limit the functionality of any computer resource;
(x) is patently false and untrue, and is written or pub-
lished in any form, with the intent to mislead or
harass a person, entity or agency for financial gain
or to cause any injury to any person;
Further, under Rule 3 (2) the social media intermedi-
ary needs to appoint a Grievance Officer (GO) to en-
sure that complaints can be addressed to the GO
against the violation of these provisions. In order for
appropriate action to be taken in accordance with the
provisions of the IT Rules (Rule 3 (1) (c)) and if the
action is not taken by the intermediary within a lim-
itedtimeframe (Rules 3(2) (i) and 3(1) (d)), action will
be taken against the intermediary as if the content
was posted by the intermediary itself (Rule 7). In this
regard the IT Rules seem similar to the German Net-
work Enforcement Act (NetzDG) 6 to a certain extent
which obligates online platforms to remove illegal
content (content that violates the German Criminal
Code) from their platforms within a certain period
of time, otherwise they face a hefty fine of Euro five
million (Section 4 (2) NetzDG). However, the NetzDG
does not itself impose deletion obligations on social
networks (but only sets tight deadlines; the deletion
obligations result from other laws), nor does it itself
determine when content is deemed illegal (but only
refers to German criminal law) and, finally, is also
limited solely to content relevant under criminal law,
in contrast to the IT Rules 2021 where substantial
obligation is coming from the rules itself. This pro-
motes the institutionalising of the concept of the per-
formance of sovereign tasks by private entities ('pri-
452 I Reports
vatisation of supervision'), as the social media plat-
forms have billions of users and it would be hard for
the government to control each and every account in
order to 'censor' the content posted.
III. IT Rules and the Right to Privacy
One of the key issues concerning the legal validity of
the IT Rules 2021 is about Rule 4 (2) which requires
a SSMI to reveal the first originator of the informa-
tion on its computer resource, if required by a judi-
cial order passed by a court of competent jurisdiction
or an order of a competent authority. This provision
is specifically problematic for messaging applica-
tions which use end-to-end encryption. It is therefore
not surprising that WhatsApp challenged the IT
Rules already before the Delhi High Court.7 The main
argument raised against this provision is its ability
to allow for surveillance concerning every message
exchanged through the messaging platform. This sur
veillance would be regarded as a direct violation of
privacy rights.
However, the question is whether this violates the
standards of the right to privacy in terms of balanc-
ing with competing interests. The decision in K.S.
Puttaswamy-I8 has clearlylaid down the guideline for
delineating the scope of the right to privacy and on
the limitations applicable to it. First, the majority
opinion delivered by Justice Chandrachud sets out
three reasons for limiting privacy9:
(i) There has to be a law in existence
(ii) There has to be a legitimate State Aim
(iii) the law must be proportionate to the objective
pursued.
Justice Chandrachud derives the origin of these three
criteria from the procedural and substantive man-
dates of Article 21 of the Constitution of India (Pro-
tection of life and personal liberty).' The first re-
quirement of an existing law is the basic premise of
Article 21. The second criterion of legitimate state in-
terest ensures that the restrictions imposed by the
law are within reasonable limits. The third criteria of
proportionality is a necessary element to protect
against arbitrary state action.I
It is interesting to note that one of the terms used
by Justice Chandrachud within the three-fold test is
'legitimate state interest', while Justice Nariman also
agrees with the three-fold test for restraining priva-
EDPL 312021
cy, but instead uses the formulation 'legitimate state
interest or public interest'. Similarly, Justice Sanjay
Kishan Kaul also accepts the three-fold test for re-
straining privacy, but instead refers to 'democratic
society' for a legitimate aim.13 Justice Chelameswar
and Justice Bobde word it 'compelling state inter-
est'.14 It is not entirely clear what these terms used
by the judges legally underpin. One needs to analyse
them carefully in order to reflect the degree of scruti-
ny each term invokes. However, the approach was
strengthened in the K.S. Puttaswamy-II judgment15.
Justice Sikri delivering the majority opinion stated
that apart from two judges in K.S. Puttaswamy-I(Jus-
tice Chelameswar & Justice Bobde) the remaining
ones relied on the term 'legitimate state interest' be-
ing a more lenient test for restricting individuals' pri-
vacy rights compared to the criteria of public inter
est and larger public interest.
In light of this jurisprudence, the provision of Rule
4(2) needs to be analysed. It reads:
Rule 4 (2) A significant social media intermediary
providing services primarily in the nature of mes-
saging shall enable the identification of the first
originator of the information on its computer re-
source as may be required by a judicial order
passed by a court of competent jurisdiction or an
order passed under section 69 by the Competent
Authority as per the Information Technology (Pro-
cedure and Safeguards for interception, monitor-
ing and decryption of information) Rules, 2009,
which shall be supported with a copy of such in-
formation in electronic form.
7 Arpan Chaturvedi, 'WhatsApp moves Delhi High Court against IT
Rules 2021' Bloombergquint, (261s May 2021) <https://www
.bloombergquint.com/law-and-pol icy/whatsapp-moves-delhi-high
-court-against-it-rules-202 1> last accessed on 311T July 2021.
8 K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, case number
W.P.(C) No.-000494-000494 / 2012, available at <https://sci.gov
.in/supremecourt/201 2/35071/35071 2012judgement_24-Aug
-2017.pdf>. Cf. on this already Ashit Kumar Srivastava 'Data
Protection Law in India: The Search for Goldilocks Effect' (2019)
5(3) EDPL 408, 414 et seq..
9 ibid Justice Chandrachud) [180] 254.
10 Constitution of India, English version available at <https://
legislative-gov.in/sites/default/files/COIl.pdf>.
11 ibid (n 9).
12 ibid Justice Nariman) [86] 455
13 ibid Justice Sanjay Kishan Kaul) [71] 533
14 ibid Justice Chelameswar) [43] 308 & Justice Bobde) [39] 344
15 K.S. Puttaswamy v. Union of India (2019) 1 SCC 1, available at
<https://main.sci.gov.in/supremecourt/2018/45777/45777_2018
5_1001 _25344judgement_l 1 -Jan-2021.pdf>.
EDPL 312021
Rule 4(2) puts an obligation on the SSMI providing
services primarily as messaging application, to reveal
the identity of the originator of a message if ordered
to do so by the competent authority. SSMI argue that
this single provision is capable of calling their entire
business model into question. Firstly, the end-to-end
encryption makes it hard for the intermediary to de-
duce what information has been shared and who
shared it.1 6 Secondly, in order to follow the orders of
competent authorities, the intermediary has to keep
track not only of the account-user against whom the
order is (indirectly) directed but also all other ac-
counts.17 Furthermore, this kind of surveillance
would create a fear in the mind of the user before
sharing anything, and is a clear violation of the pri-
vacy rights.18
However, Rule 4 (2) clarifies further that the order
can only be passed by the competent authorities '...
for the purposes of prevention, detection, investiga-
tion, prosecution or punishment of an offence relat-
ed to the sovereignty and integrity of India, the se-
curity of the State, friendly relations with foreign
States, or public order, or of incitement to an offence
16 Megha Mandavia & Surabhi Agarwal, India Messaging App Rules:
WhatsApp sticks to its stance on end-to-end encryption, Econom-
ic Times (2"d March 2021) <https://economictimes.indiatimes
.com/tech/technology/india-messaging-app-rules-whatsapp-sticks
-to-its-stance-on-end-to-end-encryption/articleshow/81 237981
.cms?from=mdr> last accessed on 31S July 2021>.
17 Ketan Pratap, WhatsApp says India's new IT Rules that ask for
message tracing will end privacy for users, India Today, (26n May
2021) < https://www.indiatoday.in/technology/talking-points/sto-
ry/whatsapp-says-india-s-new-it-ru les-that-ask-for-message-trac-
ing-will-end-privacy-for-users-1 807130-2021-05-26> last ac-
cessed on 311 July 2021.
18 ibid.
19 K.S. Puttaswamy-II (n 15) Justice A.K. Sikri) [121] 211.
20 Modern Dental College and Research Centre & Ors. V. State of
Madhya Pradesh & Ors. (2016) 7 SCC 353
21 K.S. Puttaswamy-II (n 15) Justice A.K. Sikri) [125 (c)].
22 BBC, 'How WhatsApp helped turn an Indian village into a lynch
mob', BBC (191h July 2018) <https://www.bbc.com/news/world
-asia-india-44856910> last accessed on 31ST July 2021; Pretika
Khanna, Abhiram Ghadyalpatil, Shaswati Das, 'Death by Social
Media' LiveMint, (2nd August2018) <https://www.livemint.com/
Politics/jkSPTSf6IJZ5vGC1 CFVyzl/Death-by-Social-Media.html>
last accessed on 31"'July 2021.
23 The Guardian, 'WhatsApp murders': India Struggles to combat
crimes linked to messaging services, The Guardian (3 rd July 2018)
<https://www.theguardian.com/world/201 8/jul/03/whatsapp
-murders-india-struggles-to-combat-crimes-I inked-to-messaging
-service> last accessed on 31s July 2021.
24 Rohan Venkataramakrishnan, 'India wants WhatsApp to break
encryption and trace inflammatory messages. Should it?', The
Scroll (301h September 2018) < https://scroll.in/article/895645/
ind ia-wants-wh atsapp-to-break-encryption-and-trace
-inflammatory-messages-should-it> last accessed on 31' July
2018.
Reports |453
relating to the above or in relation with rape, sexual-
ly explicit material or child sexual abuse material,
punishable with imprisonment for a term of not less
than five years'. In addition, a second proviso limits
the area of order by clearly laying down that the or
der shall not be passed in cases where less intrusive
means are effective in identifying the originator of
the information. Additionally, the third proviso states
that no SSMI is required to disclose the content of
any electronic messages, any other information relat-
ed to the first originator or any information related
to its user.
In this light Rule 4(2) does provide for sufficient
safeguard for ensuring that there is no abuse of the
power bestowed onto the authorities. However, with
regard to the test laid down by K.S. Puttaswamy-I, al-
though the first criteria is fulfilled, the second crite-
ria of a 'legitimate state interest' needs to take into
account the objective of the policy behind the law.1 9
In this case, various interests can be found that are
reflected in the second condition cited, such as the
protection of public safety and order, which may al-
so cover the dissemination of dis/misinformation un-
der certain conditions which has become a cause of
social problems. Thus, there surely is a 'legitimate
state interest'.
With regard to the third criterion of proportional-
ity, Justice Sikri in K.S. Puttaswamy-II discussed dif-
ferent elements of the proportionality test, however,
much of the remarks were drawn from the judgment
of Modern Dental College2 0 . In this decision, three as-
pects were identified as concretising proportionali-
ty: legitimate aim, suitability of the measure to
achieve this aim (linked to the question if there are
any less intrusive means) and the necessity of the ac-
tion.21
The first sub-criterion needs to be read within the
social context of the grievance that the law is intend-
ed to redress. There is no denying that messaging
applications in India have been utilized for purpos-
es which are not desirable. In fact, cases of mob
lynching, often linked with the sharing of misinfor-
mation, have increased only in the last years.2 2 A ter-
rible example was the case of the rumours of a group
of child abductors wreaking havoc in India which
was spread through messaging services and led to
many people getting killed due to this misinforma-
tion.2 This is fostered also due to end-to-end encryp-
tion models of messaging applications, where users
interact in anonymous security.24 Therefore, there
454 I Reports
surely is a legitimate aim to deal with this growing
menace.
With regard to the second sub-criterion of suitabil-
ity of the action, the approach of Rule 4(2) of tracing
the originator of the information seems to be a suit-
able solution in light of protecting the legitimate aim
with regard to the end-to-end encryption model.25 In
fact, a recent report came to the conclusion that it is
difficult if not impossible to trace the originator of
an information due to end-to-end encryption for the
purposes of academic research without the help of
providers.2 6
Another question linked to the suitability is the
third criterion of the necessity of action, in particu-
lar, whether the 'revelation of the first originator of
information'is the least intrusive means or not. This
must be seen in the light of the proviso that Rule 4(2)
itself imposes which quite clearly says that the reve-
lation of the first originator does not need to be pur-
sued if there are other less intrusive and effective
means available for tracing the originator of an in-
formation. This certainly makes the provision less
strict and probably hints towards the possibility of
accumulation of meta-data in order to trace the first
originator.
The last sub-criterion for the proportionality test
is a balancing of rights, which assesses whether the
measure adopted for restraining the right to privacy
is disproportionate or not. 2 7 As Robert Alexy28 ar
gued, norms are based on principles, which means
they must be realised to the greatest extent possible.
When structuring a fundamental right, the core
essence of the principle of which those rights are a
reflection, needs to be given space in such a way to
accommodate space for restrain.2 9 Mattias Kumm de-
fines proportionality as an opportunity for citizens
to get a public-reason based justification, 30 what he
calls a 'Socratic Contestation'. In a law-based propor
tionality review, the questioning individual is given
an opportunity of contesting the viability of the law
and thus in response receiving fine-tuned reasons.31
This element of proportionality, therefore, provides
the opportunity to address the 'thoughtlessness' 32 or
inadequacies associated with the law. In this light,
the third proviso of Rule 4(2) seems to be of rele-
vance. It ensures that while tracing the originator of
the information, the content of any of the electronic
messages is not disclosed or any other information
related to the first originator, or any information re-
lated to other users. Thus, this proviso certainly nar
EDPL 312021
rows down the scope of the restrain imposed by the
law and ensures that privacy rights are restricted on-
ly in certain cases mentioned in the first proviso
where the originator of the information will be traced
and no other information is required to be disclosed,
thereby ensuring that the essence of the right is rec-
onciled with the legitimate aim of the law. Thus if
tested on the premise of the three-fold test developed
by the K.S. Puttswamy-I decision and further elabo-
rated under K.S. Puttaswamy-II,the law seems to com-
ply with it.
IV. IT Rules and Freedom of Speech
The other measure on which the viability of IT Rules
2021 has been questioned is the question of freedom
of speech, in particular that the limitations provid-
ed for in Rules 3 and 4 have a chilling effect on the
free speech.33 Although the focus of this contribu-
tion is not on issues related to freedom of expres-
sion, it is worth highlighting that Rule 3 of the IT
Rules 2021 specifically provides for reasons content
should be removed and the implementation of a com-
plaint mechanism. Read in conjunction with Rule 7,
the intermediary is liable when it has 'actual knowl-
edge' 34 about any of the prohibited content posted
on its platform and it does not take 'appropriate' ac-
tion. This formulation leads to the criticism that in-
25 Shweta Ganjoo, 'WhatsApp maintains its stand on govt's request
for message traceability in India' India Today, (181 June 2019) <
https://www.indiatoday. in/technology/news/story/whatsapp
-main tains-i ts-stand-on-govt-s-request-for-message-traceabil ity-i n
-india-1 551098-2019-06-1 8> last accessed on 31sTJuly 2021.
26 Shakuntala Banaji, Ram Bhat, Anushi Agarwal, Nihal Passanha,
Mukti Sadhana Pravin, 'WhatsApp Vigilantees: An exploration of
citizen reception and circulation of WhatsApp misinformation
linked to mob violence in India', London School of Economics
and Political Science, <https://www.lse.ac.uk/media-and
-com mun ications/assets/documents/research/projects/WhatsApp
-Mis information-Report.pdf>.
27 K.S. Puttaswamy-II (n 18) (Justice A.K. Sikri) [125 (d)] 216.
28 Robert Alexy, A Theory of Constitutional Rights (Oxford Universi-
ty Press, 2009).
29 ibid.
30 Mattias Kumm 'The idea of Socratic Contestation and the Right to
Justification: The Point of Rights-based Judicial Review' (2010)
Law & Ethics of Human Rights.
31 ibid.
32 K.S. Puttaswamy-II (n 11) (Justice A.K. Sikri) [125 (d)] 216.
33 A chilling effect test was contrived from 'Shreya Singhal v. Union
of India AIR 2015 SC 1523'.
34 Cf. on this Shreya Singhal v. Union of India AIR 2015 SC 1523.
EDPL 312021
termediaries, due to fearing liability, may be inclined
to overreact and remove any content which is even
remotely close to the content mentioned under the
Rule 3 .This could inevitably lead to digital exclusion
of many of the harmless content which falls outside
the scope of the rules. 35 Further, automated tools
would be designed in a manner to automatically
eliminate content which is even remotely related to
controversial content. This in turn could lead to users
no longer posting content for fear of their accounts
being blocked or content being deleted. In this re-
gard ,the IT Rules could create a chilling effect 3 6 re-
stricting freedom of speech as it is guaranteed un-
der Article 19 (1) (a) of the Indian Constitution - a
fear that is already subject of several petitions filed
to the high courts. 37 Reasonable restrictions of the
freedom of speech are only justified under certain
conditions described in Article 19 (2) of the Indian
Constitution. According to this, grounds on the ba-
sis of which freedom of speech may be restricted are
in particular the sovereignty and integrity of India,
the security of the State, friendly relations with for-
eign States, public order, decency or morality, or in
relation to contempt of court, defamation or incite-
ment to an offence. The reasons on the basis of which
content is not allowed on social networks laid down
in Rule 3 (1) (b) must be carefully analysed in this
light along the lines of the objectives they pursue
such as protection of copyright law (i. and iv.), against
defamation3 8 (ii.) and crime (impersonation (vii) and
deceiving or misleading addressee (vi)) and of chil-
dren (iii.).
35 ibid.
36 Cf. on the concept of chilling effects Shreya Singhal v. Union of
India AIR 2015 SC 1523.
37 There have been several writ petitions filed across India challeng-
ing the validity of the IT Rules 2021: Writ filed by WhatsApp in
Delhi High Court, Writ Filed by The Quint, by the Wire and
LiveLaw.
38 Cf. on this Bobby Art International v. Om Pal Singh Hoon AIR
1996 SC 1846; Ranjit D. Udeshi v. State of Maharashtra 1965 AIR
881.
39 United Nation Human Rights, Special Rapporteur on the promo-
tion and protection of the right to freedom of opinion and ex-
pression, 2018, <https://www.undocs.org/A/H RC/38/35>, para.
17.
Reports |455
V. Conclusion
The implications of the IT Rules in relation to mes-
saging application and social media networks can be
summarised in that the criticism of the IT Rules com-
ing from platforms in India is primarily based on the
notion that in today's digital world interaction on so-
cial media platforms is in a way sort of a fundamen-
tal right. Due to the current pandemic, the life of mil-
lions of people has been restrained to digital screens
and these platforms act as an important stage for the
exercise of fundamental rights. They are means of
expression, association and even profession. There-
fore, under this skewed scenario where any form of
digital exclusion would lead to social exclusion, the
platforms are basing their arguments on the indis-
pensable role they play. This could be described as
commercialisation of the fundamental rights, where
we see the platforms (or the possibility to use them)
as equivalent to holding the rights. Further, the idea
of an overzealous censorship by the platform is as a
threat to the freedom of speech, in particular with re-
gard to an automated exclusion of content. In this re-
gard, a report of the United Nations on promotion
and protection of the right to freedom of opinion and
expression holds that legitimate state interests such
as privacy and national security can require the re-
moval of unlawful content and drafting respective
regulations in that sense, however, necessitates to
consider that such rules involve risks to freedom of
expression and are putting significant pressure on
companies. It highlights that complex questions of
fact and law should generally be adjudicated by pub-
lic institutions, not private actors whose current
processes may be inconsistent with due process stan-
39
dards and whose motives are principally economic.
Thus, there has to be a more favourable solution to
the problem of hate speech, content that is harmful
to the state, etc. There has to be more participatory
consultations between various stakeholders so that
the desired actions can be better coordinated. Fur-
ther, the state has to take into consideration the fact
that digital exclusion is a legitimate threat, which is
why the reasons of classifying content as unlawful
needs to be defined in a more consultative manner.