2021 Year in Review | India’s IT rules and the threat to individual privacy

Arguably the most controversial regulations introduced in India this year were Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, or simply the IT rules. They have since been challenged in various courts, and parts of them have been stayed by the high courts of Bombay and Madras.

Notified in February 2021, the new rules came into effect three months later. They required, among other things, large social media platforms and messaging apps to be able to identify and trace the “first originator” of any message. They also said these companies would have to appoint a chief compliance officer, a grievance redressal officer resident in India, and publish a monthly compliance report with details of complaints received and action taken.

OTT platforms, online news and digital media entities, meanwhile, were classified as ‘publishers of online curated content’ under the new rules and would have to follow a Code of Ethics.

Here are the major developments around the controversial rules this year.

Govt notifies new rules governing digital media: On February 25, the government
notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 under the Section 79 of the Information Technology Act.

In doing so it took what is probably the toughest stand on regulating social media and over the top (OTT) platforms in the world. When the rules came into effect on May 26,
we put together an FAQ addressing what social media platforms stood to lose.

WhatsApp sues govt: On May 25, the day before the rules came into effect, WhatsApp
filed a case in the Delhi High Court against the Indian government, seeking to block the new regulations. “Requiring messaging apps to ‘trace’ chats is the equivalent of asking us to keep a fingerprint of every single message sent on WhatsApp, which would break end-to-end encryption and fundamentally undermines people’s right to privacy,” a WhatsApp spokesperson said.

Twitter gets three weeks to show compliance: A week later the Delhi High Court directed Twitter to
submit details of its compliance with the new rules in three weeks. It also sought a response from the union government on a petition stating that the platform had not complied with the regulations.

Govt issues FAQs on IT rules: In November, the Ministry of Electronics and Information Technology (MeiTY) provided clarity on the IT rules
through a set of frequently asked questions. It said the rules were consistent with the right to freedom of speech by the Constitution and did not place any additional obligations on users.

IT rules seriously undermine privacy, IFF says: However, the Internet Freedom Foundation (IFF) quickly published a 12-point fact-check of the government’s FAQs. MeitY said the FAQs were meant to “bring clarity” on the rules and “explain the nuances of the due diligence” that intermediaries must follow, but IFF said
many claims were presented as facts in the document.

20 ‘anti-India’ YouTube channels, two websites banned: In late December,
India banned 20 YouTube channels and two websites for allegedly running anti-India propaganda from Pakistan, invoking for the first time the emergency powers under the IT rules.

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