Frontlist | IT Rules 2021: Can The Indian Government Use Section 69 Of IT Act To Censor Digital Media?

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Under the government’s new Intermediary Liability and Digital Media Ethics Code Rules, 2021 for digital media firms and digital news platforms, the Ministry of Information and Broadcasting (MIB) has been awarded powers to block or modify online “news and current affairs” content through an Inter-Departmental Committee and Oversight Mechanism. Additionally, the new rules extend the government’s powers under Section 69A of the Information Technology Act, 2000 to block internet content and reprimand publishers in the interests of “sovereignty, integrity, defence of India and security of the State or preventing a cognisable offence.”

Under the rules, the government has set up an Inter-Departmental Committee (IDC), headed by the MIB, which can decide to issue orders that seek modifications or blocking on online news and current affairs content under Section 69A of the IT Act.

“The way they have issued these rules is ultra vires or outside the scope of the law. If the government wants to introduce, regulations for digital media, it should introduce a law,” a senior legal and constitutional expert told MediaNama. The government seems to think that because digital media companies are using internet infrastructure, which is governed by the IT Act, they can be regulated under the intermediary guidelines. This is a fundamental conceptual problem with the way government thinks about its rule-making power, this person said on the condition of anonymity.

“The IT Act is not about controlling content on the internet, that is not the purpose of the Act. The law may give the government the power to make rules, but the rules need to be in accordance with law. Since the IT Act does not define digital media, these rules are null and void. The IT Act had anyway given the government powers under Section 69A to block any internet content, but under these rules they have extended those powers under these rules to digital media which is questionable”—Senior legal and constitutional expert

Why this matters: Prior to issuing these new rules, the government had powers under provisions of the Indian Penal Code to prosecute cases of hate speech or speech that damaged the ‘sovereignty, integrity, defence and security aspects’, but it did not have any specific regulations on digital media. Further, Section 69A of the IT Act, so far, provided the government with the power to block online content and block websites in the interests of the state. Government orders under Section 69A of the IT Act would be issued to internet intermediaries as defined under the IT Act.

A bit of context: The rules, among other things, require all digital media organisations and online news publishers to create a grievance redressal mechanism, set up a self-regulatory organisation (SRO) as well as follow codes which have only been applicable to print and TV news so far. The rules also specify procedures for when action may need to be taken against digital media entities  to block certain content. A summary of the rules for digital media under the IT Act 2000.

Rule making power is not legislative power

The government has used Section 87 of the IT Act, which provides the executive with rule making powers, to issue its guidelines for over-the-top streaming services, social media platforms and digital media entities. Since Section 87 of the Act only affords the government the power to frame rules, for industries or technologies that are clearly defined under the IT Act, it cannot use this section to introduce rules which are legislative in nature.

“However, several aspects appear to be overreaching. For example, the Rules have introduced new definitions such as “news and current affairs” and “digital media” which are not defined in the parent, IT Act 2000. While some form of regulation for digital media from the Government was impending, it is arguable that the Rules go beyond the purposes envisaged under Section 87 of the IT Act, in as much as they lay down policies of law“— Tanu Banerjee, Partner, Khaitan & Co

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Source: Media Nama

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