Heavy Touch Regulation

Context: Though the changes that the government seeks to implement through the Information Technology (IT) (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 are desirable, there are some underlying issues to be addressed.

Critical evaluation of new IT Rules 2021

• More rule-making powers to government: comparing to Section 69A of IT act
  • Grounds of Regulating online content:
    • Section 69A cannot be used to regulate obscene or sexually explicit online content.
    • IT Rules 2021 require classification of online content based on nudity, sex, expletive language and substance abuse.
  • Increased the scope of regulation: By classifying online video streaming platforms (which were out of the scope of Section 69A of the IT Act) as “intermediary” under the IT Act thereby brought them under the scope of regulation.
  • Broader powers under IT rule 2021 related to censorship: It includes requiring an apology or disclaimer, re-classification of content and deletion or modification of content.
• Lack of independence: for the three-tier regulatory framework created under the rules because-
  • 3^rd tier comprises entirely of bureaucrats and there is no guaranteed representation from the judiciary or civil society. 
  • Review Committee constituted under Rule 419A of the Indian Telegraph Rules, 1951 solely consists of officials belonging to the executive branch.

Ideal steps to make rules for regulation: uphold constitutional due process

1. Identify the need for regulation: By outlining the harms that are sought to be addressed through regulation of online video streaming platforms.
2. Public consultation in rulemaking: Not limited to industry representatives.
3. Implement the rules for regulation through legislation: If regulation was found necessary after steps 1 and 2.

Conclusion: It is not desirable to seek regulatory parity as the cost of creative freedom