Legal advisers told the Modi government that some clauses in India's new IT rules were beyond the scope of existing law and required parliamentary approval
Law secretary Anoop Mendiratta overruled the recommendation of the legal advisers as per official documents
The Indian government mandated a three-tier oversight process for publishers of news and online curated content as well as OTT platforms in February
Two of the central government’s legal advisers told the Prime Minister Narendra Modi-led cabinet that some clauses in India’s new IT rules were beyond the scope of existing law and required parliamentary approval, which was circumvented in passing of the controversial IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The new rules were notified in February this year, more than a year after legal advisers had raised some red flags around the clauses in the draft version of the rules.
The Indian government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, which mandate a three-tier oversight process for publishers of news and online curated content i.e. OTT platform. Tightening the noose around digital media players in the country, social media apps like Twitter, Facebook, and YouTube would be required to take down objectionable content/posts within 36 hours of receiving a complaint from competent authorities. OTT platforms like Netflix, Amazon Prime and Zee5 will also face stringent scrutiny from the government as per the new guidelines.
What Advise Did Modi Government Overlook In Passing IT Rules?
But before this, in January 2020, the rules only covered social media platforms and not the OTT industry. It was during this period that two senior legal advisers under the ministry of law and justice advised the IT ministry to first make amendments to the Information Technology Act, 2000, before looking to pass the new rules, according to an Article-14 report based on an RTI inquiry.
The advisers claimed the new rules have a number of discrepancies such as imposing liability on the intermediary for the traceability of messages, which is not specifically supported by the provisions of Section 69(3) of the IT Act, 2000, which deals with monitoring, intercepting or decrypting any information transmitted, generated, received or stored in any computer resource.
Further, the advisers questioned the liability or punishment for the chief compliance officer of an intermediary, as this has not been defined in the IT Act, besides trhe fact that the IT Act does not define terms like “significant social media intermediary”, “social media intermediary” and “social media”.
These amendments in the IT Act would have required parliamentary approval, which is a more time-consuming exercise, and given the pandemic, might not have been on the agenda of the houses of the parliament all through last year, as has been the case for many pending legislations such as the Personal Data Protection Bill, the crypto bill and so on.
As per documents obtained by Article-14, the two legal advisers were removed from the records before a copy of the proposed bill was submitted by the ministry. Law secretary Anoop Mendiratta overruled the advice of the legal advisers, who later withdrew their objections given bill’s focus on “the larger public interest”.
Since then, the rules were expanded in November 2020 with the inclusion of OTT platforms. As per the rules, the government will soon constitute an Inter-Departmental Committee (IDC) consisting of representatives from various ministries, to look into complaints regarding online content on news portals, social media and OTT platforms. The committee will form the core of the oversight mechanism for digital media intermediaries. Video streaming or OTT platforms such as Netflix and Hotstar would have to classify their content into categories based on the age of viewers. Besides this, they have to appoint grievance officers to address viewer complaints and liaise with an industry self-regulatory body that would have authority over all such platforms.
The rules mandate a government-appointed inter-departmental committee (IDC), which could order cuts or censor online content based on the complaints it receives. Worryingly, the IDC’s authority overrides those of OTT platforms and their self-regulatory body. It can also take up complaints suo moto, without waiting for the video streaming platforms or their self-regulatory body to resolve those complaints. Under the new IT rules, the I&B ministry will frame a charter which OTT platforms need to abide by, which includes a code of practice for the industry.
Legal Challenges Against IT Rules
Soon after the rules were notified in February, India’s law and IT minister Ravi Shankar Prasad defended the new rules, which are widely being seen as a move to further government censorship of news and OTT content. Prasad said while India will continue to remain “tolerant” of online content, video streaming services need to be responsible and accountable for their shows and movies.
In April 2021, the Delhi High Court issued a notice while hearing a petition by a clutch of digital news media organisations challenging India’s IT rules. The petition was filed by the Foundation for Independent Journalism (FIJ), a non-profit company that publishes The Wire. The petitioners include MK Venu, director of FIJ and founding editor of The Wire, Mangalam Kesavan, director at FIJ, and Dhanya Rajendran, founder and editor-in-chief, The News Minute.
The petition alleges that the new IT rules are illegal, as they seek to monitor and regulate digital news media portals, even though the parent statute (IT Act, 2000) doesn’t provide such powers to the government. Further, it points out that the IT Act doesn’t provide for the imposition of a TV programme code or regulation of news portals in any manner. However, this is sought to be done through the new IT rules.
The petitioners claim that even Section 69A of the IT Act, which allows the government to issue directions to take down certain content from the internet, doesn’t provide powers to dictate content to news media portals. This is because Section 69A envisages only an ‘agency of the government’ or ‘intermediaries’ as targets of its directions. However, Part III of the new rules, which seeks to set up a three-tier oversight mechanism for the regulation of digital media, goes beyond the legal or regulatory powers that the government has as per the parent IT Act.
In the tech industry, social media giant Facebook is also said to be considering a legal challenge to India’s new IT rules on the basis of violation of the right to privacy. Facebook is considering filing an appeal alone or jointly with social media peers who will be affected by the rules.
The new guidelines — the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 — require significant social media intermediaries (those with at least 50 lakh registered users) to appoint a grievance officer, chief compliance officer and nodal person of contact, besides requiring them to comply with government orders for the takedown of certain content deemed to be in violation of the law.
Besides this, the Internet and Mobile Association of India (IAMAI) on April 9 prepared a final list of concerns from online video streaming OTT platforms such as Netflix, Amazon Prime and Disney+ Hotstar on the Information Technology Rules, 2021. OTT platforms have sought an extension to the deadline to comply with the new rules. IAMAI also wrote that the industry has asked for an additional three months to appoint grievance officers and implement the self-regulatory body (SRB), both of which are mandatory under the new law. The platforms also sought a year’s extension for implementing parental controls and an additional six months for other obligations such as content descriptors.
The IAMAI also contended that the government-run IDC on the tier 3 of the system shouldn’t get complaint referrals directly from the I&B ministry, and these should instead work their way up the three tiers, failing which the point of self-regulation would be undermined.