IT Media Guidelines 2021: Authorized hurdle in digital media regulation

On February 25, the government officially announced the “Information Technology Rules 2021 (Intermediate Guidelines and Code of Ethics for Digital Media)”. The rules were established under the Information Technology Act of 2000 by the Ministry of Electronics and Information Technology (MeiTY), which administers the law.

These rules aim to regulate content on social media platforms (intermediaries) like Twitter and Facebook – a consequence of the government’s view that unbridled content on these platforms is sometimes against the interests of the country. These rules deal with a range of undesirable content, from pornography to the dissemination of false information to content that violates IP laws and content that threatens the unity, integrity, security and sovereignty of India.

Questions raised

Now, put the rules aside for a moment. Some questions about the validity of the rules were raised for technical reasons. Raghav Ahooja, a law student at the Rajiv Gandhi National University of Law in Punjab who regularly writes on the “intersection of law and technology,” points out a technical flaw in the way the rules were set.

Ahooja writes in that MeiTY is now empowered to set the rules, as the regulation of the content of digital media is the responsibility of the Ministry of Information and Broadcasting (MIB). The MIB cannot set the rules either because the ministry does not manage the IT Act 2000. The 1961 Allocation of Business Rules clearly defines which ministry does what.

Problematic status

In this case, while MeiTY itself has said that the part of the rules relating to digital media should be managed by the MIB, Ahooja says that such a position is problematic because in the law what is not done directly can, cannot be done indirectly.

The IT Act of 2000 does not aim to regulate digital media – it does not even define digital media. Ahooja says the Supreme Court has ruled in the past that “if a rule goes beyond the rule enacted by law, it must be declared ultra vires (outside one’s own authority)”.

Ahooja’s argument is that the rules cannot be set under IT law (which is more related to cyber crimes). “Therefore, the rules mentioned go beyond the scope and scope of the IT law and go beyond the superordinate law. Therefore, the rules are ultra vires of the IT law and can be challenged in court for both reasons, ”he says.

It’s really up to the MIB to regulate digital media. If it so wishes, it has to do so in consultation with MeiTY, but it has to be the MIB that introduces a law and passes it through parliament, says Ahooja.

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