The article argues that IT Rules 2021 far exceeds the rulemaking power granted under Section 69A of the IT Act.

Censoring online video streaming

• Online video streaming platforms have marked a new dawn for the Indian entertainment industry.
• The spectre of government regulation and criminalisation haunts this fledgling industry.
• There have been various efforts to censor online video streaming platforms by petitioning the courts for a long time.
• At least 23 petitions were being heard by different high courts on the issue of regulation of online video streaming platforms.
• The grievances range from wounded religious sentiments to moral outrage against depictions of sexuality but the common thread that unites them is a desire to control what other citizens may watch in the privacy of their homes.
• In addition to petitions seeking heavy-handed regulation, criminal proceedings have been initiated against employees of companies like Netflix and Amazon Prime.
• While such FIRs may be in the context of specific films or shows, they cause substantial harassment and threaten the personal liberty of content creators and company executives.

IT Rules 2021 exceeds the rulemaking power under Section 69A of IT Act

• The imposition of any kind of criminal liability under the IT Rules 2021 would far exceed the central government’s rule-making power under Section 69A of the IT Act.
• The existing three-tier regulatory mechanism and content classification system prescribed under the rules are also unconstitutional for the same reason.
• The following three issues need to be considered while considering the IT Rules 2021.
• First, the powers under Section 69A can be exercised only in the interest of the sovereignty, defence, security of the State, friendly relations with foreign States or public order or for preventing incitement etc.
• The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit.
• Second, Section 69A states that the central government may direct “any agency of the Government or intermediary” to block access to online content but online video streaming platforms do not fall into either of these two categories.
• Companies like Netflix and Amazon Prime commission or license the films and shows available on their platforms, and they are not an “intermediary” under the IT Act.
• Third, Section 69A only grants the central government the power to “block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.”
• However, the range of powers granted under the IT Rules 2021 is much broader and includes requiring an apology or disclaimer, re-classification of content and deletion or modification of content.
• As a result, the IT Rules 2021 significantly expand the scope of powers available under Section 69A.

Issues with the three-tier regulatory framework

• The three-tier regulatory framework created under the rules suffers from the substantive problem of lack of independence.
• The third tier, which is the Inter-Departmental Committee, comprises entirely of bureaucrats and there is no guaranteed representation from the judiciary or civil society.
• The Review Committee constituted under Rule 419A of the Indian Telegraph Rules, 1951 also solely consists of officials belonging to the executive branch.

Way forward

• The solution is to start afresh with publication of a white paper which clearly outlines the harms that are sought to be addressed through regulation of online video streaming platforms and meaningful public consultation which is not limited to industry representatives.
• If regulation is still deemed to be necessary, then it must be implemented through legislation that is debated in Parliament instead of relying upon Section 69A of the IT Act.

Consider the question “The IT Rules 2021 have been criticised for exceeding the rulemaking power under Section 69A of the IT Act. Examine the scope of the criticism.”

Conclusion

Many of the changes that the central government seeks to implement through the IT Rules 2021 may be well-intentioned and desirable. However, constitutional due process cannot be sacrificed at the altar of expediency

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