What is contemptible for a person might be admirable for another. Even after
learning the same laws, people interpret them in different ways. Then, how can a
law-enforcing agency arbitrarily decide that the content of a section is poorly
written? This was the question asked by the Supreme Court to annul S.66 A of the
Information Technology Act.
The declaration of the section as unconstitutional
was later celebrated as the victory of the Freedom of expression. Six Years
later, lives and circumstances have changed. New laws and rules have come into
the picture with great changes. There is a side that supports these changes and
a side that argues that the new rules curb the right to express. This article
tries to evaluate The Information Technology (Intermediary Guidelines and The
Digital Media Ethics Code) Rules, 2021by analyzing the guidelines and
Six years have passed after the declaration of S.66 A as unconstitutional.
Under the new circumstances, the Apex court made another observation:
Law-making is necessary for the proper regulation of social media and O.T.T (over-the-top) platforms. Acts that do not provide provisions or scope of
prosecution or punishment for the violators are merely guidelines and have no
This comment was made by the SC while listening to the petition
seeking anticipatory bail by Aparna Purohit who is the head of Amazon Prime
India Originals in the controversial Tandav web series case.
In the meantime, heated debates were happening in the outside world regarding
The Information Technology Rules, which was notified the previous week
(25th February 2021) by the Central Government.
The two observations made by two different benches of the Supreme Court in two
different years hold extreme positions in the debate of Freedom of Expression.
The right to freedom of opinion is one of the basic values of the modern
democratic system. Everyone has a fundamental right to form his/her opinion on
any issues of general concern. At the same time, unlike the United States,
the Indian constitution does not give absolute freedom of expression. The
right is subjected to reasonable restrictions.
Here, the word reasonable
significant and complicated at the same time. If the preconceived notions of
society and the interests of the State are the basis for determining what is
reasonable, then the society, as well as the individuals, would have to pay a
great price for the freedom to express opinions. There would be no scope for
criticisms. This causes apprehension on the new Digital media guidelines and
The internet has democratically decentralized content creation and distribution
processes. There are different contentions raised by different groups both for
and against the newly laid Digital media rules. One side of the debate has
people who voice for Internet rights saying that there should be no law that
disturbs the creative existence of content on the web. And the other side is of
the opinion that there should be stringent laws against cyberbullying, fake
news, and other antisocial activities.
The Information Technology (Intermediary Guidelines and The Digital Media Ethics
Code) Rules, 2021 has been drafted under S.87 (2) of the IT Act of 2000 as a
replacement of the Digital media Rules of 2011.
The new Information Technology Rules has three parts:
- Basic information
- Due diligence by intermediaries and grievance redressal mechanism.
- Code of Ethics and Procedure and safeguards in Relation to Digital
The second part is regulated by the Ministry of Electronics and Information
Technology, and the third part, by the Department of Telecommunications.
As per the IT Act; telecom, internet, web hosting service providers, search
engines, Online payment services, social media, and messaging applications come
under intermediaries. As per the act, the intermediaries were not liable
for any indirect transfer of information. This actively demonstrates that
the institution or social media is not liable for the contents created or shared
by the users. However, the new rule does not give these benefits to the
intermediaries. The government states that the intermediaries themselves act as
According to the number of users, social media intermediaries are categorized
into normal and significant.
Some of the guidelines meant for these
- For resolving complaints, social media intermediaries should appoint a
Grievance Officer. The complaint should be accepted within 24 hours and
resolved within 15 days.
- Images or videos containing private parts of people, nudity, fake or
morphed contents should be removed within 24 hours of receiving the
Additional Guidelines for significant intermediaries
- To ensure the proper working of the rules and regulations, a Chief
Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer
should be appointed. The officers should also be permanent residents of
- Reports should be published on the complaints received and the actions
taken every month.
- Proper explanations should be provided regarding sources of the contents
that disturb the sovereignty, safety, fraternity, and foreign relations of
the nation. This is also applicable for rape content as well as images or
videos regarding sexual offenses against children. Such contents should be
removed within 36 hours of receiving the complaint.
- The contents which are disallowed for publication by the Courts,
Government or Government agencies that are unlawful should not be published.
Digital Media and Ethics
- OTT platforms, online news portals, and media institutions are supposed to
follow the digital media ethical guidelines.
- OTT platforms should categorize contents based on the appropriate age of
The categorization is:
- U (Universal)
- U/A 7+
- U/A 13+
- U/A 16+
- A (Adult)
In addition, the publisher of online curated content shall prominently display
the classification rating specific to each content or programme together with a
content descriptor informing the user about the nature of the content and
advising on viewer description (if applicable) at the beginning of every
programme enabling the user to make an informed decision, prior to watching the
- Publishers of news in digital platforms should abide by the guidelines
laid down by the Press Council of India and the Cable Television Network
- Digital media should have a three-tier self-regulatory mechanism for the
classification of content, code of ethics, and grievance redressal system.
- The rules are said to be helpful for grievance redressal but give the
Government excess control over the intermediaries and digital media. This would
not only restrict freedom of expression immoderately, but also curb the right to
information and restraint the internet rights.
- Excessive censoring may get imposed over digital contents.
- The rules regarding the sources of the content affect the privacy of
users, since tracking of the source is not possible without the removal of
end-to-end encryption feature which ensures privacy in messaging
applications. Although tracking of the source without removing the
end-to-end encryption, was in consideration, the Internet Freedom Foundation
explained that this might leave loopholes for frauds, i.e., to tamper with
the information regarding the source.
- The the three-tier regulatory system of digital media includes the
monitoring committee of the Government. The final decision on any complaint
would be from this committee. This might lead to political censoring. The
government can also impose its decisions on the media.
- Most of the significant OTT platforms functioning in India have
implemented a self-regulating or classifying system content-wise and
age-wise. Further control over these platforms by the government would be
against the right to freedom of expression.
- The guidelines recommend using automated technology to detect unlawful
contents. using developing technology for content checking is not practical.
Also, the pre-conceived notions and interests in coding can cause
discrimination of contents.
- News media does not come under the purview of the IT Act. Hence,
including news portals in the rule is a violation.
- Enforcing a rule by an executive decree surmounting the parliament is
not democratic. The rules were passed without proper discussions or debates
in the parliament.
As mentioned earlier, the two observations made by the Apex court within a time
difference of six years have made commendable changes in internet usage in our
nation. The explanation of the Government for the new digital media rules is the
remarkable growth of internet usage, even by the common people. They also
explain that, as part of the digital- India program various new IT companies
have rooted down in India which makes Government interference a necessity.
As per Government records, significant social media in India are
- WhatsApp with 53 crore users
- YouTube with 44.8 crore users
- Facebook with 41 crore users
- Instagram with 21 crore users
- Twitter with 1.75 crore users
At the same time, some of the statistics from ‘Digital India’ contradicts the
claims of the Government. As per the report of U.S Freedom House, Internet
freedom in India is slowly declining each year. India ranked only the
51st position in the Freedom on the Net 2020 Index among 100 countries that are
As per the statistics of Access Now, an organization working for digital rights
and privacy, India is the nation that has the highest number of internet
shutdown incidents in 2020. Worldwide, different governments purposefully
severed the internet 155 times the previous year. Out of these, 109 incidents
are from India. Internet blackouts not only threaten people’s lives during
COVID-19 and block protests and organizing, they also dismantle pathways for
getting help. Many who were targeted by shutdowns in 2020 remain in danger
today. As per top10VPN, India lost 2.8 billion dollars because of internet
Indian Cyber Crime Coordination center (I4C) is a nodal agency created under the
Central Ministry to curb cybercrimes. I4C declares that it aims to find, curb,
and prosecute cybercrimes with the cooperation of the government and the
citizens. As part of this, citizens can register as a volunteer on the National
Crime Reporting Portal.
The process in which the citizens themselves observe each other can be called
lateral surveillance. In a nation with political, cultural, and religious
diversities, lateral surveillance is sure to wreak havoc in the long run. This
process creates enmity between people with ideological differences and causes
intolerance in society.
The government accelerated the digital media regulations while the tool-kit
controversy related to the farmers' protest was big news. One of the states
chosen for the test run for citizen watch is Jammu and Kashmir where protests
are rising due to the continuous internet shutdowns, the other state being
Tripura. These are the major reasons that make critics doubtful regarding the
credibility of the government.
When the number of internet users is increasing exponentially each year, the
number of attacks, sexual assault, and frauds through the internet are also
increasing. Hence, rules and guidelines that regulate internet usage are a
necessary evil. However, the government should not excessively control or impose
its political interests on the media.
While encouraging creative and progressive contents on the internet, we should
also contempt unlawful activities. If the government can assure the proper
working of the rules without excessive interference from their side, the rules
and regulations might help reduce cybercrimes in India.
- [Tandav] “Cheap and objectionable”, All HC rejects bail application of
Aparna Purohit. Holds, submission of apology or withdrawal of scene after
streaming would not absolve criminal liability | SCC Blog
- Aparna Purohit vs State Of U.P. on 25 February, 221
- Tandav Controversy: Case filed against makers, actors of web series in
Bengaluru for hurting religious sentiments
- The Information Technology (Intermediary Guidelines and Digital Media
Ethics Code) Rules, 2021
- Supreme Court refuses protection to makers of web series Tandav |
- SC asks for law on OTTs, says the regulations suggested have 'no teeth'
- Constitution of India-Freedom of speech and expression
- S. Rangarajan Etc vs P. Jagjivan Ram on 30 March, 1989
- Article 19(1) in The Constitution Of India 1949
- Section 87 in The Information Technology Act, 2000
- Salient Features Of The Information Technology (Intermediary Guidelines
And Digital Media Ethics Code) Rules, 2021 - Media, Telecoms, IT,
Entertainment - India
- Analysis Of The Information Technology (Intermediary Guidelines And
Digital Media Ethics Code) Rules, 2021 - S.S Rana & Co
- Explained: India&apos's new draft rules to regulate social media, OTT
platforms - The Week
- Due Diligence to be observed by Social Media Intermediaries and
Significant Social Media Intermediaries under Information Technology Rules,
2021 - Lexology
- Government reveals stats on social media users, WhatsApp leads while
YouTube beats Facebook, Instagram - Technology News
- Freedom House Index: internet freedom in selected countries 2020 |
- Internet shutdown news and report: a year in the fight to #KeepItOn
- Top10VPN estimates internet shutdowns in India cost in $2.77 billion
- Section 66 A of the Information Technology Act, 2000
- SC asks for law on OTTs, says the regulation suggested having ‘no
teeth’. – By FPJ Bureau; www.freepressjournal.in
- Hon’ble Supreme Court of India
- The case against the makers and actors of controversial web series
Tandav for allegedly hurting the religious sentiments of the Hindus and
promoting religious enmity between groups.
- The Information Technology (Intermediary Guidelines and The Digital
Media Ethics Code) Rules, 2021.
- S. Rangarajan v. P. Jagjivan Ram on 30th March 1989, 1989 SCR (2) 204,
1989 SCC (2) 574
- Article 19 (1) (a) in the Constitution of India, 1949
- Clause (2) of Article 19 of the The Indian constitution, 1949
- The power of the Central Govt to make rules.
- Information Technology (Intermediary Guidelines) Rules, 2011 as notified
on April 11, 2011.
- S.2 (1) (w) of Information Technology Act, 2000
- Information Technology Act, 2000
- S.79 of the Information Technology Act, 2000
- OTTs to self-classify content, get a three-tier grievance redressal
- Government reveals stats on social media users, WhatsApp leads while
YouTube beats Facebook, Instagram: www.indiatoday.in
- Degree of internet freedom in selected countries according to the
Freedom House Index 2020: www.statista.com
- Internet shutdowns report: Shattered dreams and lost opportunities — a
year in the fight to #KeepItOn