New Delhi: The Narendra Modi government was advised by two departments to come out with a new law to regulate online content as existing statute did not permit this, but instead chose to go through the controversial route of coming out with a new set of IT (Information Technology) Rules to govern social media companies, digital media platforms and streaming services, according to a new media report.
The Morning Context, a tech industry publication, on Friday morning reported that the information and broadcasting (I&B) ministry and the Intelligence Bureau (IB) had in 2020 “sought the enactment of a new law for regulating online content” during inter-governmental discussions that took place on digital media and fake news among other similar issues.
“Though it subsequently made an about-turn from this position, the I&B ministry even prepared a draft cabinet note in early July last year stating, among other things, that the IT Act 2000 is not primarily meant to regulate content on electronic devices, so a new law is needed for this purpose,” the report noted.
“The IB, on its part, did not find the IT Act adequate to regulate online content and was in favour of a ‘statute-backed regulatory framework’ for the purpose,” it added.
In an August 2020 note, the IB also observed that “there is no law to govern streaming of content for public viewing by OCCPs [online curated content providers like Netflix] and UGCPs [user generated content providers like YouTube] in India…”
These alleged revelations, which are sourced from documents obtained through RTI requests, are significant in light of the various legal challenges that have been mounted against the IT Rules, which are formally known as the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
These Rules are aimed at regulating content put out by digital media platforms by creating a grievance redressal mechanism that is overseen by a panel of bureaucrats. While the Centre insists this is needed to fight misinformation and fake news, the new regulations have also been challenged by a wide range of stakeholders*.
A recurrent theme that has emerged from these looming court cases is that the new IT rules appear to go beyond the scope of its parent act (the Information Technology Act, 2000).
For example, in its petition before the Madras high court, the Digital News Publishers Association, whose members make up some of India’s biggest and most popular newspapers, has said: “The IT Rules are patently in excess of the provisions of the IT Act and amount to significantly, unjustly and illegally extending and expanding its scope, which is absolutely impermissible as per applicable laws.”
This vein of criticism appears to have been echoed in spirit by the I&B ministry and Intelligence Bureau.
According to the Morning Context, the Prime Minister’s Office was also allegedly in favour of a “rules route” with regard to regulating digital content.
“It appears from the proposal document that the PMO weighed in favour of taking the rules route for regulating digital content. In our questions to the I&B and IT ministries as well as the PMO, we asked if it was because the PMO was in favour of regulating digital content through rules under the IT Act that it was eventually decided to go that way, but received no response,” the report noted.
In May 2021, Article 14 reported that two legal advisors within the ministry of law and justice also raised concerns about the manner in which the new IT rules were formulated, with one joint secretary saying that the IT ministry should be advised that the Rules may “require certain corresponding amendments in the IT Act 2000 to justify its vires”.
Disclaimer: The Foundation for Independent Journalism, which is the publisher of The Wire, has filed a petition in the Delhi high court challenging the new IT Rules.