The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 notified last week will likely change how the internet functions in the country. The Rules can be divided broadly into three areas — (i) internet and social media intermediaries (ii) digital news and (iii) OTT streaming services.
The Rules mandate a laundry list of compliance requirements on intermediaries and social media platforms. Perhaps the mandate most worthy of concern is “traceability”, wherein significant social media intermediaries (social media companies with more than 5 million users in India) are required to enable the tracing of a message originator, potentially compromising end-t0-end encryption on their platforms. Meanwhile, on the digital news and OTT front, the I&B ministry has prescribed a “self-regulatory” regime, all the while giving itself powers to virtually block any content on an emergency basis.
We have put together a guide on the new Rules, with summaries, commentaries and stories on the same. We have also traced the development of intermediary liability guidelines from 2018, when the government began trying to amend them.
The Rules
- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 [download]
Our summaries of the Rules
- Intermediaries And Social Media Platforms [read]
- Digital News Publishing [read]
- OTT Streaming Services [read]
How do the Rules impact the internet, online services, and news?
As mentioned above, the Rules will have a fundamental impact on how the internet, and internet-based companies function in India. Everything, starting from online news, streaming content on platforms like Netflix, and social media companies will now be more tightly regulated. In fact, just days after the Rules were notified, a journalist in Manipur was issued a notice by the state government seeking information about a live show he was a part of. Later, the Information and Broadcasting Ministry clarified that state governments can’t issue such notices:
- Can The Indian Government Use Section 69 Of IT Act To Censor Digital Media? [read]
- How Live Streaming Content On Social Media Will Be Impacted [read]
- How Will Business Messaging Products Like Slack, Microsoft Teams Be Impacted? [read]
- 5 Bullets Dodged By OTT Streaming Services In The IT Rules 2021 Rules [read]
- How will SaaS companies like Freshworks and Zoho be affected? [read]
- I&B Ministry On Emergency Blocking Powers For OTT And News: Government Has Always Had This Power [read]
- State Governments Can’t Issue Notices To Media Houses Under New Digital Media Rules: I&B Secy [read]
Reactions to the Rules
- India’s New Intermediary Liability And Digital Media Regulations Will Harm The Open Internet, by Mozilla’s Udbhav Tiwari [read]
- Identifying A Message’s Originator Undermines End-To-End Encryption: Internet Society [read]
- Responses To New Information Technology Rules For Social Media, OTT Platforms And Digital News Media [read]
Legal Challenges
So far, five petitions have been filed against the new rules in different high courts, all of whom are digital news publishers and their representatives.
- The Quint’s petition in Delhi HC: IT Rules 2021 enable govt to dictate digital news content [read]
- A brief of LiveLaw’s arguments in its plea challenging the Rules in Kerala HC [read]
- Plea by Foundation for Independent Journalism (which publishes The Wire) and Dhanya Rajendran (The News Minute) in Delhi HC [read]
- Petition by advocate Sanjay Kumar Singh in Delhi HC: Grounds for content removal too broad, unconstitutional [read]
- Plea by Truth Pro Foundation India, which publishers Kannada news publication Pratidhvani in Karnataka HC: Rules go beyond scope of parent Act [read]
Making of these Rules: How did we get here?
In December 2018, the government had proposed amendments to intermediary rules under the IT Act. These amendments introduced the traceability requirement, and required intermediaries to hand over to government agencies any information that might be related to cyber security, national security, or to the investigation, prosecution or prevention of an offence, within 72 hours.
- The Information Technology Intermediaries Guidelines (Amendment), 2018 [download]
The issue of enabling traceability on end-to-end encrypted platforms like WhatsApp
Both the new Rules, and the proposed amendments of 2018 require platforms like WhatsApp to identify the “originator” of a message, despite the platforms contesting that this will undermine end-to-end encryption which is a crucial element to ensure that online communications remain private. A case initially filed in the Madras High Court, and later transferred to the Supreme Court saw the government batting for traceability on platforms like WhatsApp. An IIT professor even suggested a way to enable it, claiming that his method won’t undermine end-to-end encryption. However, concerns have been raised around his idea.
- WhatsApp To Madras HC: Impossible To Track The Sender Of A Message Because Of Encryption [read]
- Tell Us If Traceability Is Technically Possible: Madras HC To WhatsApp And IIT Madras Professor [read]
- IIT Madras’s Kamakoti Tells MediaNama How WhatsApp Traceability Is Possible Without Undermining End-To-End Encryption [read]
- Dr Kamakoti’s Solution For WhatsApp Traceability Without Breaking Encryption Is Erroneous And Not Feasible [read]
- Kamakoti’s Proposals Will Erode User Privacy, Says IIT Bombay Expert In IFF Submission [read]
- Exclusive: WhatsApp’s Response To Dr Kamakoti’s Recommendation For Traceability In WhatsApp [read]
- End-To-End Encryption Not Essential To WhatsApp As A Platform: Tamil Nadu Advocate General [read]
- Chennai-Based KPost Says Traceability Is Possible, Wants To Be Impleaded In WhatsApp Case [read]
- Tamil Nadu Govt Makes A U-Turn On Facebook Transfer Petition, Asks For Decryption [read]
Several civil society organisations had called for abandoning the proposed 2018 amendments
- Mozilla Calls Proposed IT Rule Changes For Intermediaries ‘Blunt And Disproportionate’ [read]
- Editorial: A Serious And Imminent Threat To The Open Internet In India [read]
- MP Rajeev Chandrasekhar For Removing Safe Harbour, Says Platforms Must Take Down Unlawful Content [read]
- Asia Internet Coalition Raises User Privacy And Free Speech Concerns Over Draft Intermediary Guidelines [read]
- Mozilla, Wikimedia And Github Urge IT Min RS Prasad To Abandon Proposed Intermediary Liability Guidelines [read]
- The Cumulative Effect Of Recent Internet Regulation, by Sidharth Chopra, Nandita Saikia [read]
- Intermediary Liability: What IndiaTech.org Said In Its Submission To MeitY [read]
- Intermediary Liability: What IMI Said In Its Submission To MeitY [read]
- Intermediary Liability: What STAR India Said In Its Submission To MeitY [read]
- Proposed Intermediary Liability Rules Threat To Privacy And Free Speech, Global Coalition Tells MeitY [read]
- Recommendations For Governments And Intermediaries On Safe Harbor Protection For Intermediaries – SFLC.in [read]
- Intermediary Liability Amendment: Civil Society Counter Comments On ‘Unlawful Content’ [read]
- The Manila Principles And Intermediary Liability Protections In India – SFLC.in [read]
- We Need A Better Approach To WhatsApp And Traceability [read]
- Five Fundamental Flaws In India’s Intermediary Liability Amendments, by Nikhil Sud [read]
- Proposed Intermediary Liability Rules Are A Threat To Wikipedia’s Collaborative Model: Wikimedia Foundation To IT Ministry [read]
- Proposed Changes To Intermediary Guidelines Will Put Digital India’s Future At Risk: ISOC [read]
- IAMAI: Social Media Takedown Notices Should Be Above Board [read]
Calls for taking away safe harbour from internet platforms
Politicians from across the aisles have called for eroding safe harbour provisions afforded to social media companies. The common argument is that due to this provision, platforms lack accountability:
- Seeking Accountability From Social Media Sites, Shiv Sena’s Priyanka Chaturvedi Says Safe Harbour ‘Cannot Be Accepted Anymore’ [read]
- BJP MP Tejasvi Surya Criticises Twitter For Deplatforming Trump, Wants Intermediary Liability Reviewed; MediaNama’s Take [read]
MediaNama’s discussions on the proposed 2018 amendments to intermediary guidelines
- #NAMApolicy: No Clarity On What Constitutes Offenses For Intermediaries – Alok Prasanna Kumar [read]
- #NAMApolicy On Safe Harbor: The Intent Of Traceability Is Behavioral Change [read]
- #NAMApolicy On Safe Harbor: The Dunzo Debate; Proactive Takedowns; Gradation Of Harms [read]
- #NAMApolicy On Safe Harbor: Should Different Sizes Or Categories Of Intermediaries Be Regulated Differently? [read]
- #NAMA: Does Traceability Meet The Puttaswamy Test? What Kind Of Procedural Safeguards Do We Need? [read]
- #NAMA: Is Traceability Enforceable? How Does It Impact Intermediaries? [read]
- #NAMA: Proactive Monitoring Can Lead To Mass Private Surveillance; Who Decides What Is Unlawful Content? [read]
- #NAMA: Problems With Local Incorporation; Need For Transparency, Accountability And Recourse For Users [read]
- #NAMA: Why Traceability, Or Some Form Of Accountability, Has Become Necessary [read]
- #NAMA: How Proactive Monitoring & Removals Impacts Intermediaries; Copyright And Safe Harbour, And Whether We Should Classify Intermediaries [read]
This guide will be updated regularly with relevant links and content.
