The article discusses the issues with the new rules issues under the IT Act.

Issues with the new rules

1) No discussion

• Last week, the Union Government issued a set of rules under the Information Technology Act, superseding rules issued under Section 79 of that statute in 2011. 
• This has happened in the absence of open and public discussion and without any parliamentary study and scrutiny.

2) Concerns over legal basis

• The Union Government has chosen to pass these rules under the requirement to outline the due diligence that Internet intermediaries have to follow in order to be able to claim their qualified legal immunity under Section 79 of the IT Act.
• These rules at the outset appear unlawful even with respect to whether they could have been issued under the Information Technology Act in the manner chosen by the government, leave alone their constitutionality with respect to fundamental rights.
• The government’s gazette notification has further claimed that the rules were also issued under the legal authority to specific procedure for blocking web content under Section 69A of the IT Act.
• However,  rules overseeing government web content blocking powers have already been issued for that section in 2009, and not superseded.

3) Using rule making power to issue primary legislation

• The ability to issue rules under a statute — i.e. to frame subordinate legislation — is by its nature a limited, constrained power.
• The executive branch is subordinate to what Parliament has permitted it and cannot use its rule-making power to seek to issue primary legislation by itself.
• With the present Internet content and social media rules, the Union Government has done precisely that.
• The executive branch has created new rules that apply only to “significant social media intermediaries” — a term that appears nowhere in the Information Technology Act.
• The rules have grown to include a chapter on how digital news sites have to be registered before the Ministry of Information and Broadcasting.
• However, digital news service registration is not required under the IT Act and streaming video content has not been included under the ambit of the Cinematograph Act.

Consider the question “What are the challenges in the regulation of Big Tech to democracies? Suggest the measures to deal with these challenges.”

Conclusion

Instead of advancing Internet content control, India needs to advancing surveillance law reform or enacting a strong statutory data protection framework.

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