Permanent Mission of India responds to the concerns about India’s IT Rules, 2021

Permanent Mission of India to the United Nations Office and other International Organizations in Geneva has responded the concerns raised by Special Procedures Branch of the Human Rights Council regarding India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. The letter written by the Permanent Mission of India mentions that:

“The Permanent Mission of India to the Office of the United Nations and Other International Organizations in Geneva presents its compliments to the Special Procedures Branch of the Human Rights Council and has the honour to refer to the Joint Communication No. OL IND 8/2021 dated 11^th June, 2021, from the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on the right to privacy and to enclose a brief Information Note on India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

The Permanent Mission of India would also like to inform that the Ministry of Electronics and Information Technology and Ministry of Information and Broadcasting undertook broad consultations in 2018 with various stakeholders, including individuals, civil society, industry association and organizations and invited public comments to prepare the draft Rules. Thereafter an inter-ministerial meeting had discussed in detail the comments received in detail and, accordingly, the Rules were finalized.

The Permanent Mission of India would also like to highlight that India’s democratic credentials are well recognized. The right to freedom of speech and expression is guaranteed under the Indian Constitution. The independent judiciary and a robust media are part of India’s democratic structure.

The Permanent Mission of India requests that the enclosed information may be brought to the attention of the concerned Special Rapporteurs.

The Permanent Mission of India to the Office of the United Nations and other International Organizations in Geneva avails itself of this opportunity to renew to the Special Procedures Branch of the Human Rights Council the assurances of its highest consideration.”

India’s Information Technology (Intermediary Guidelines and Digital Media Ethics Code) rules, 2021

The Government of India, in exercising its powers under section 87 (2) of the Information Technology Act, 2000, and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011, framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘new IT Rules’) and notified the same on 25 February, 2021. For the significant intermediaries, the Rules have come into effect from 26 May, 2021. The salient features of the new IT Rules are annexed.

The Rules are designed to empower ordinary users of social media. The victims of abuse at social media platforms shall have a forum for redressal of their grievances.

The enactment of new IT Rules had become necessary due to widespread concerns about issues relating to increased instances of abuse of social media and digital platforms, including inducement for recruitment of terrorists, circulation of obscene content, spread of disharmony, financial frauds, incitement of violence, public order etc.

The Supreme Court of India in two judgements — the Prajwala case of 2018 and Facebook v. Union of India in 2019 — had directed the Government of India to frame necessary guidelines to eliminate child pornography and related contents in online platforms and other applications. In the second case, the Court had said that it was imperative to frame proper regime to find out the persons, institutions, and bodies who were the originators of such content messages. It has become necessary to seek such information from the intermediaries.

The Indian Parliament (Upper House – Rajya Sabha) had repeatedly asked the Govt. of India to strengthen the legal framework and make the social media platforms accountable under the Indian laws.

The Ministry of Electronics and Information Technology and Ministry of Information and Broadcasting undertook broad consultations in 2018 with various stakeholders, including individuals, civil society, industry association and organisations and invited public comments to prepare the draft Rules. Thereafter, an inter-ministerial meeting had discussed in detail the comments received in detail and, accordingly, the Rules were finalized.

On 25 February, 2021, the new IT Rules were notified and the significant intermediaries were given a three-month period to comply. The social media companies are required to appoint India based grievance redressal officer, compliance officer and nodal officer to enable the users of social media, who have a grievance to have a recourse for its redressal. Prior to the notification of the Rules, the users had no opportunity to file a complaint in case of any misuse or abuse of social media platforms.

The role of the Grievance Officer appointed under the new IT Rules is to receive user complaints and thereafter, dispose it off. The number of such complaints received need to be reported to the Government every month.

The concerns alleging potential implications for freedom of expression that the new IT Rules will entail, is highly misplaced [A detailed Press Release on 27 May, 2021 issued by Government of India is enclosed]. India’s democratic credentials are well recognized. The right to freedom of speech and expression in guaranteed under the Indian Constitution. The independent judiciary and a robust media are part of India’s democratic structure.

On the traceability of the first originator of the information, it may be noted that the new IT Rules seeks only limited information. Only when a message already in public circulation is giving rise to violence, impinging on the unity and integrity of India, depicting a woman in a bad light, or sexual abuse of a child and when no other intrusive options are working, only then the significant social media intermediary will be required to disclose as to who started the message.

The concern that the Rules may be misused deliberately to make a large number of complaints so as to overwhelm the grievance redressal mechanisms created by social media platforms is also misplaced, exaggerated and disingenuous and shows lack of willingness to address the grievances of the users of these media platforms while using their data to earn revenues.

The Government of India fully recognises and respects the right of privacy, as pronounced by the Supreme Court of India in K.S. Puttusamy case. Privacy is the core element of an individual’s existence and, in light of this, the new IT Rules seeks information only on a message that is already in circulation that resulted in an offence. The Rules have framed in exercise of the statutory powers of the IT Act, fully taking into account the principles of reasonableness and proportionality. CT Bureau