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THE LEGALITY AND CONSTITUTIONALITY OF THE INFORMATION TECHNOLOGY RULES, 2021
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THE LEGALITY AND
CONSTITUTIONALITY OF THE INFORMATION TECHNOLOGY RULES, 2021
AUTHORED BY - MS. SAKSHI PANDEY
BA-LLB STUDENT
SYMBIOSIS LAW SCHOOL-NAGPUR
SYMBIOSIS INTERNATIONAL (DEEMED
UNIVERSITY)
NEAR GIDOBA MANDIR
MOUZA – WATHODA, NAGPUR DISTRICT –
440008
MAHARASHTRA STATE, INDIA.
EMAIL
[SAKSHIPANDEY.STUDENT@SLSNAGPUR.EDU.IN]
ABSTRACT
In 2021, the
Central Government of India enacted Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021 while exercising the
powers conferred upon it by the virtue of Section 87 of the Information
Technology Act, 2000 with an objective to regulate the digital media content.
The rules were formulated relying upon the guidelines issued by the Supreme
Court in In Re: Prajwala Letter wherein it directed the Central Government to
lay down the guidelines for the elimination of child pornography and content
that are sexual in nature. The rules aim at incurring liability upon the
intermediaries for not removing the prohibited digital content from digital
media and thus depriving them of the safe harbor protection conferred upon them
under Section 79 of the Information Technology Act, 2000. In the instant paper,
the researchers attempt to establish that the rules of 2021 are intra vires the
IT Act, 2000, and the Constitution of India.
KEYWORDS: IT Rules 2021, Constitution, Reasonable
Classification, delegation.
INTRODUCTION
“The Ministry of Electronics and
Information Technology (MeitY) has notified the Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”
(hereinafter referred to as “IT Rules, 2021”) on 25.10.2021.
The Rationale behind the enactment of
the IT Rules, 2021 is to provide basic uniform guidelines for the regulation of
digital media with a rationale to curb the growing instances of misuse of
digital media platforms which is nowadays seen at its peak within the territory
of India.
For instance, “communal riots happened in
different parts of North-East Delhi between the 24th and 29th which caused loss
of life and property and disrupted the working of civic services in Delhi. A
committee was set up to determine the factors that could disturb communal
harmony in the NCT of Delhi and suggest measures for eliminating such factors.
The committee suggested that Facebook had been used as a breeding ground for
abetting hate and jeopardizing communal harmony.”[1]
According to the 2021 Global Threat
Assessment Report,[2] there is
a rise in child self-generated sexual material during the COVID-19 pandemic.
According to Internet Watch Foundation, 3,61,062 reports were investigated in
2021, and action was taken against 2,52,000 reports, that contain videos and
images of children being sexually abused. It added that in 2021 the sharing of
images of girls being sexually abused was much more than in any previous year.
There was a three-fold increase in the content that shows the children between
the age group of 7-10 being abused.
To stop such activities, the rules
2021 were enacted. Its key features include the due diligence that shall be
observed by the Social Media Intermediary (hereinafter referred to as SMI) and
Significant Social Media Intermediary (hereinafter referred to as SSMI) by
ensuring prohibition from the publication of content that is “(i) prohibited
under the law for time being in force in relation to the interest of the
sovereignty and integrity of India; security of the state, friendly relations,
public order; decency or morality; (ii) defamatory, obscene, pornographic,
paedophilic, invasive of another’s privacy including bodily privacy, insulting
or harassing on the basis of gender, libellous, racially or ethnically
objectionable, harmful to a child; (iii) a false information; (iv) violative of
IPR, etc.”[3] It
also provides a robust complaint mechanism for the users of social media and
over-the-top (OTT) platforms to address their grievances.
One of the new features that Rules
2021 provides is a prohibition on the publication of harmful content to
children. Children are the most vulnerable because of their age and are at risk
of exploitation. As has already been mentioned above that there is a surge in
child sexual abuse apart from that there are also instances of situations where
children even committed suicide because of the use of digital media. For
example, the Blue Whale game also called a suicide game, wherein the creators
seek out their players/victims who are in depression and send them an
invitation to join. 50 tasks are allotted to selected “players” which must be
accomplished within a 50-day period. Once the Players started playing the game
they cannot stop it, they are coerced into completing the game, where they are
brain-washed and dragged to commit suicide. The consequences of this game were
so destructive that the SC passed an order for taking immediate measures to
ban/block all sites linked with the Blue Whale online game or any other form of
violent and immoral games similar in nature.[4]
PRE-2021 RULES TO GOVERN DIGITAL MEDIA
1. DIGITAL MEDIA ENTITIES ARE GOVERNED
UNDER DIGITAL NEWS PUBLISHERS ASSOCIATION GUIDELINES
Digital Media entities are governed
under Digital News Publishers Association guidelines (hereinafter referred to
as DNPA Guidelines). The guidelines seek to make sure that its members shall
follow the standards of digital publishing by (i) following the Constitution of
the country and subjecting themselves to the domestic laws relating to the
media; (ii) maintaining Accuracy, Transparency & Fairness; (iii) Taking
down, deleting, or editing any new report or article; (iv) Respecting
Intellectual Property Rights; (v) taking special care to be taken while
reporting on sexual harassment in the workplace, child abuse, rape, etc; (vi)
complying with Sections 67, 67A and 67B of the Information Technology Act, 2000
where applicable; (vii) providing Grievance Redressal Mechanism – The members
shall appoint a grievance officer whose contact details are displayed on the
website and who shall act within 36 hours of receipt of a complaint by an
aggrieved.
2. THE INTERNET AND MOBILE ASSOCIATION
OF INDIA
In 2019, the Internet and
Mobile Association of India (hereinafter referred to as IAMAI) released the
'Code of Best Practices for Online Curated Content Providers, 2019 (hereinafter
referred to as code 2019). This code prohibits the publication of any content
which is prohibited under the law in the interest of the sovereignty and
integrity of India, content that shows child pornography or encourages
terrorism or other forms of violence against the state, or any content that has
been banned for exhibition or distribution by online video service under
applicable laws or by any court of competent jurisdiction. It was later
substituted by the Self-Regulation of Online Curated Content Providers issued
in 2020.
NEED FOR THE IT RULES, 2021
The fact that there were
guidelines for the regulations of these entities even before 2021 makes it
apparent that there were instances of inappropriate information on the
internet. Moreover, in Prajwala v UOI, the Court ordered the UOI to frame
guidelines to eliminate child pornography, rape, and gang rape imageries,
videos, and sites in content hosting platforms and other applications.
Therefore, to make a uniform guideline to regulate the content published on
various digital media, IT Rules, 2021 was formulated. The pre-2021 guidelines
viz. DNPA guidelines and the Code 2019 were discretionary in nature and are
applicable to members who voluntarily want to subject themselves to these
guidelines.
LEGALITY AND CONSTITUTIONALITY OF
THE IT RULES, 2021
RULES 2021 ARE INTRA VIRES THE IT ACT 2000
The preamble of an Act
states the intention of the lawmakers behind the legislation. The preamble of
the Information Technology Act of 2000 in its preamble states:
“An Act to provide
legal recognition for transactions carried out by means of electronic data
interchange and other means of electronic communication, commonly referred to
as "electronic commerce", which involve the use of alternatives to
paper-based methods of communication and storage of information, to facilitate
electronic filing of documents with the Government agencies and further to
amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books
Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters
connected therewith or incidental thereto.”[5]
The preamble to the Act,
2000 states that the Act had been brought into force in order to provide legal
recognition to transactions carried out by means of electronic communication
which involve an alternative to paper-based communication and storage of
information.
Apart from the two
above-mentioned points which hint at the intention of the Act, 2000, is that
the makers were careful enough to provide that the Act, 2000 shall also deal
with matters connected/incidental to electronic communication.
Therefore, it is clear by
virtue of the wording of the preamble that the Act, 2000 shall regulate the
aspects which are beyond what the preamble mentions but are incidental to
electronic communication.
Therefore, it would be
fit to say that the essence of the Act, 2000 and the preamble to the Act, 2000
is very well incorporated in the IT Rules 2021; whereby the Rules 2021 intends
to ensure proper redressal of disputes that arise out of the arena of the
intermediaries.
THE IMPUGNED RULES 2021 ARE VIRES THE CONSTITUTION OF INDIA
Where any legislation or
rule so enacted is in derogation to the fundamental rights (Part III) of the
Constitution, it shall be void to the extent of such inconsistency. The same
has been explicitly mentioned in Article 13 of the Constitution. Furthermore,
if any legislation or rule so enacted is violative of Article 14 of the
Constitution, the same shall result in making such legislation or rule
unconstitutional.
The IT Rules 2021 are
consistent with Article 13 and 14 of the Constitution of India. Article 14 of
the Constitution provides that the State shall not deny to any person equality
before the law or equal protection of the laws within the territory of India.
The IT Rules 2021 under
Rule 2(v) & 2(w) have classified intermediaries into significant social
media intermediaries (SSMI) and social media intermediaries (SMI) respectively.
In this relation, it is submitted that although a classification has been made
into the intermediaries ie. SSMI and SMI, the genus for SMI & SSMI are only
one, ie. Intermediaries (so mentioned in the Act, 2000). In this relation only a classification of
intermediaries is made and that the same has already been provided in the Act,
2000. Thus, the IT Rules, 2021 have not in any way brought into effect any
concept/entity poles apart from what the Act, 2000 in Section 2(1)(w) provides
for. The Rules have merely made it specifically about the two subsets of
intermediaries- SMI & SSMI, both of which have a direct & absolute
nexus with the aspect of intermediary which the Act, 2000 already has provided.
In order to substantiate
better that the IT Rules 2021 only provide for the classification of
intermediaries and provide equal protection to both SMI & SSMI, it becomes
crucial to take into consideration Rule 7 of the Rules 2021. The said rule
talks about non-observance of the IT Rules, 2021 mentioned as follows:
“Where an intermediary
fails to observe these rules, the provisions of sub-section (1) of section 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.”[6]
Rule 7 mentioned above
provides for liability in case of non-compliance or non-observance of the
Rules, 2021 is in question. Rule 7 mentions the liability of an ‘intermediary’
and does not make the provision specific to an SMI or an SSMI. Had the Rule mentioned
specifically the liability of an SMI or an SSMI, it could have been construed
that the Rule differentiates between SMI or an SSMI. However, the same is not
the case herein. Rule 7 provides the same liability for an SMI & an SSMI.
Therefore, it cannot be said that there is even an iota of providing unequal
treatment to SMI or SSMI under the Rule 7 w.r.t. the aspect of equality before
the law as provided under Article 14 of the Constitution of India.
IT RULES 2021 FOLLOWS THE PRINCIPLE OF REASONABLE CLASSIFICATION
The rules make a
classification of intermediaries in SMI & SSMI, the genus of both is the
same ie, intermediary as defined in Section 2(1)(w) of the Act, 2000. The IT
Rules, 2021 do not coin anything in the ambit of SMI or SSMI which is distinct
from what the Act, 2000 provides under the concept of the intermediary. Rules
2(v) & 2(w) do not transgress what has been already mentioned in Section
2(1)(w). Therefore, it cannot be said that the IT Rules 2021 fail to follow the
principle of reasonable classification.
The Hon’ble Apex Court in
Transport & Dock Workers Union v.
Mumbai Port Trust[7]
has held that “If a classification is conducive to the functioning of modern
society, then it is certainly reasonable and rational.” The Court has also
held in Khandig Sham Bhat v Agrl. ITO[8]
that “It is not the phraseology of the statute that governs the
situation; but the effect of the law that is decisive.”
The preamble of the Act,
2000 provided that the Act, 2000 was enacted to deal with matters connected or
incidental to electronic communication which involves paperless communication
& storage of information. Without this classification of intermediaries
into SMI & SSMI, the impugned Rules, 2021 shall be inefficient & shall
have effect merely on paper & not in reality. Without the classification,
dealing with the matters of electronic communication (as aimed by the preamble
of the Act, 2000) shall be nearly impossible. This is the very logic behind
classification of intermediaries, that the purpose of the preamble to the Act,
2000 is served. Therefore, it cannot be said that there is no logic behind such
a classification.
The very purpose of Rules
3 to 7 is to ensure due diligence by intermediaries & grievance redressal
mechanism of the grievances of the intermediary users. This is one of the
biggest reasons behind the classification of the intermediaries into SMI &
SSMI. In case no such classification would have been made, efficient &
better grievance redressal of grievances arising out of digital space would be
impossible.
In relation to the same,
Rule 3 provides basic due diligence which is an obligation on all the
intermediaries (including SSMI as well). Rule 4 provides for additional due
diligence which by its nature is intended to provide for more enhances
grievance redressal. The same obligates the SSMI to appoint a nodal contact
person (apart from other obligations & appointment of Chief Compliance
Officer & Resident Grievance Officer) for 24x7 coordination with law
enforcement agencies.
It is a known fact that
since SSMI has a huge user base, they tend to have greater & deeper effects
on the lives of the users & the people. Thus, when grievance redressal of
dispute arising out of an SSMI is in question, there is bound to be a more
stringent, more efficient & deeper redressal mechanism. The same calls for
greater & more elaborate obligations to be complied by the SSMI. Thus, it
cannot be said that the impugned Rules 2021 do not follow reasonable
classification for there needs to be heavier & more detailed grievance
redressal considering the effect an SSMI has on the people, the gravity of the
probable complaints, and the expected remedy.
CONCLUSION
There has been a
considerable passage of time between the enactment of the IT Act, 2000, and the
enactment of the impugned Rules, 2021. In these 21 years, there has been
significant development in the digital space. The canvas of digital space has
seen a significant change. The impact of the internet has increased and a
plethora of social media platforms have mushroomed over time.
Although digital space
& technology has developed rapidly, amendments to the Act, of 2000 have not
happened at a similar pace as technology. Therefore, by way of delegated
legislation, the legislature tried to address these on-ground situations &
ensure that the delegated legislation provides an effective remedy when the
Parent Act becomes inefficient.
The rapid developments in
the digital space, the Legislature attempted by virtue of the IT Rules, 2021 to
codify the grievance redressal mechanism & the working of intermediaries in
the digital space. It is noteworthy to consider that had the legislature not
taken such a course, there could have been chances of an absence of law;
thereby resulting in lawlessness.
[1] Ajit Mohan & Ors. v Legislative
Assembly, NCT of Delhi AIR 2021 SC 3346.
[2] 2021 Annual Report, Internet Web
Foundation (April. 04, 2023, 6:06 PM) https://www.iwf.org.uk/about-
us/who-we-are/annual-report-2021/.
[3] Rule 3(1) (b) of the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021.
[4] Sneha Kalita vs. Union Of India
and Anr. MANU/SCOR/46460/2017
[5] Preamble of The Information
Technology Act, 2000.
[6] Rules 7 of the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules,
2021.
[7] Transport & Dock Workers Union v. Mumbai Port Trust, (2011) 2
SCC 575.
[8] Khandig Sham Bhat v. Agrl. ITO, AIR 1963 SC 591.
Article Information
THE LEGALITY AND CONSTITUTIONALITY OF THE INFORMATION TECHNOLOGY RULES, 2021
Authors: MS. SAKSHI PANDEY
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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