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I&B Ministry, Intelligence Bureau told govt that IT Act does not allow regulation of online content: Report

The government’s own legal advisers had also raised concerns about the new IT rules but they were overruled, reports said in May.

The Ministry of Information and Broadcasting (I&B) and the Intelligence Bureau (IB) had both submitted in official documents that no existing law in India empowered the government to regulate online content and a new law must be legislated for this purpose, The Morning Context reported based on documents obtained under the Right to Information Act.

Despite this objection, the government on February 25 went ahead and notified the Information Technology (IT) Rules 2021, which governs social media platforms, digital news publishers, and online streaming platforms. The government has repeatedly stated that the rules were issued under the existing powers granted by the Information Technology Act, 2000. However, the I&B Ministry prepared a draft cabinet note in July 2020 stating that the IT Act is not meant to regulate content on electronic devices and a new law is needed for this purpose. The Intelligence Bureau also found the IT Act to be inadequate to regulate online streaming and video platforms and wanted a “statute-backed regulatory framework” to address this issue, the report revealed.

Currently, the new rules are being challenged in multiple courts across the country, with petitioners arguing the same. “The observations made by two important arms of the central government appear to confirm the validity of the criticism about the new IT Rules,” the report stated.

Office of Prime Minister involved

The documents obtained by The Morning Context also reveal that the officials in the Prime Minister’s Office and Prime Minister Narendra Modi himself were involved in amending the Allocation of Business Rules and the IT Rules to empower the government to regulate online content. The Allocation of Business Rules was amended in November 2020 to bring digital news publishers and online streaming platforms under the I&B ministry. Subsequently, the provisions of the IT Rules concerning these platforms fell under the purview of the I&B ministry, rather than the Ministry of Electronics and Information Technology.

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“The PMO and the IT ministry appear to have been keen to regulate online content by amending the rules quickly, instead of taking the longer, but more consultative, route of a Parliament-backed law,” the report stated.

Govt legal advisors also advised the same

Two of the government’s own legal advisers warned it that the new IT Rules were beyond the scope of the law and required parliamentary approval, but Law Secretary Anoop Mendiratta overruled this advice for “the larger public interest,” Article 14 reported in May.

This advice was given in January and February last year and pertains to a draft version of the rules that did not include provisions for streaming platforms and digital news publishers. Based on the documents obtained by Article 14, the law ministry advisers did not seem to comment on the inclusion of OTT platforms and digital media in the IT rules, but noted that there was “no specific provision in the IT Act enabling (sic) to impose any penalty or to take penal action against the intermediaries or digital media.”

A deputy legal adviser from the Ministry of Law and Justice warned the MeitY in January last year to first make “suitable amendments” to the IT Act, 2000 before promulgating the new IT Rules. Later in February 2020, a law ministry joint secretary and legal adviser wrote a three-page note expanding on the advice given by the deputy legal adviser. The joint secretary noted that the new rules “give a wide amplitude to the duties and functions of intermediary” and “seems to extend beyond the scope of third party information, data or communication link made available or hosted by him.” The joint secretary also reminded the government that the executive has no power to turn “a particular act into an offence and prescribe punishment for it” and the rules “suffered from “the vice of excessive delegation.”

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