Indian IT Laws 2021

Namrata Chauhan


From dealing with unauthentic news to preventing monopolistic practices, the Government of India has come down hard on the big tech in recent months, with the introduction of its new IT laws. The application of the new IT law is giving ease to some portion of users and at the same time, they are getting on the nerves of others. What exactly are these new amendments made which claim to be aimed at more transparency and the country’s battle against false information while also being claimed to be ending democracy in the country?
To understand this controversial and contradictory view the Government and the Citizens have on the laws, let us understand it further.


So, the main focus to make these IT laws come into the limelight is the excessive number of cybercrime reported in India. At a press conference, Electronics and IT Minister Ravi Shankar Prasad said the basic essence of ‘The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021’ is a “soft-touch oversight” mechanism to deal with issues such as the continuous spread of fake news, abuse of these platforms to share morphed
images of women and contents related to revenge porn or to settle corporate rivalries. It’s notified that the new, stubborn, or stricter guidelines for social media intermediaries will make it mandatory for  such as WhatsApp or Facebook to work in a manner that will help in identifying the “originator” of “unlawful” messages.


The new laws require Twitter, Facebook, and YouTube to take down messages within a specific time frame, set up grievance redressal mechanisms as well as assist government agencies in the investigation. This new rule, in fact, has an immense potential impact on privacy in particular through the requirements for internet platforms to trace the ‘originator’ of information, essentially banning the use of end-to-end encryption by services like WhatsApp. It also insists that the online platforms have a system of identity verification, which would “likely
entail users sharing phone numbers or sending photos of government-issued IDs to the companies” and could “incentivize the collection of sensitive personal data that are submitted for this verification, which can then be used to target the user. The giants like Google, WhatsApp, Facebook, Telegram, Koo, and LinkedIn have shared details with MEITY ( Ministry of Electronics and Information Technology) as per the requirement of the new norms. Twitter sought an extension of the compliance window and called for constructive dialogue and
a collaborative approach from the government to safeguard the freedom of expression of the public. WhatsApp also filed a case in the Delhi High Court against the government on grounds that the new rules violated customer privacy.
The new Intermediary Guidelines and Digital Media Ethics Code have also been challenged by entities like The Wire, LiveLaw, and The Quint.
Since the companies weren’t ready to comply with the law because they are being supposed to hold the obligations or the weightage of the users emotions, but having said that companies cannot neglect the fact that the country had about 448 million social media users as of January this year, WhatsApp
(530 million Indian users), YouTube (nearly 450 million Indian users), and Facebook (410 million Indian users), up by 21 percent on annual basis, according to figures published by DataReportal and Hootsuite, so ultimately the companies and the laws have to be on the very same page.


The problem of traceability of originators or creators of information on
messaging platforms are also the subject of litigation before the Supreme Court in Antony Clement Rubin v. Union of India (T.C. Civil No.189 of 2020).
This case originated as a PIL before the Madras High Court seeking linking of Aadhaar with social media accounts. However, during the course of hearings before the Madras High Court, the focus shifted to traceability of originators of information on end-to-end encrypted platforms such as WhatsApp, and the case was later transferred to the Supreme Court.


Rajendra Kumar, the Additional Secretary, Union Ministry of Electronics &
Information Technology mentioned that the country is working at a good pace to handle the data, both personal and non-personal to ensure that the security would work seamlessly and there should not be any loophole left that is worth the scrutiny. He mentioned that data is a key enabler in the growth of the economy, so the privacy of data is something taken into sharp consideration and with the new law, the protection of the individual or the companies becomes extremely important as the government becomes an intermediary among the users and their providers, and a lot of users and providers may not be
concurring the decision set by the government, just like “Twitter,” it has
refused to comply with the government being intermediary and on June 16, it lost intermediary status in India, now if any case files against the platform, the platform itself will be liable to respond for that, the whole obligation will be implied on the platform itself, and on another hand, Facebook has already agreed to comply with the new IT rule, a Facebook spokesperson said,
“We aim to comply with the provisions of the IT rules and continue to discuss a few of the issues which need more engagement with the government. Pursuant to the IT Rules, we are working to implement operational processes and improve efficiencies. Facebook remains committed to people’s ability to freely and safely express themselves on our platform.” But then again, Facebook has never been the poster child for the ethical use of user data. Between having to choose a user base of 2 Billion users and doing the right thing, you will always find Facebook
towards the side which holds more profits as it has always chosen the same side since its conception. This law affects the freedom of speech, as limits are set to OTT (Over-the-top Media) platforms on the kind of information being posted there to be conscious of the Government’s views on the information, which makes us question whether India really is a Secular and Democratic state or
if it can be compared to the likes of North Korea or China where the Government cannot be criticized. While the Government claims that the laws are put in place to increase the safety of the users and fight against the spread of unlawful or false information, most of the efforts of the Government have been made to trample opposition or remove posts that criticize its undemocratic position on important issues. The increment in the number of cases filed against the decision of the government shows that the nation has taken a unanimous stand against the power the government is trying to grant itself by removing any content it considers to be unfitting to its national values.


India is a massive economy. Not only does it provide an extremely lucrative marketplace for the Big Tech to operate in, but it also constitutes a large chunk of its user base. The new IT laws shift the responsibility of the posts on a Platform from the companies to the individual user, given that the Platforms agree to the new policies and essentials helps the government pinpoint the blame on a user. While the topic at discussion is the power to remove a
post which the government does not deem to be lawful, placing such a law over the speech of an individual over the internet would allow governments with the autonomous power to dictate what can and cannot be said. Due to the potential loss of user base, several Big Tech companies (Facebook, WhatsApp, Instagram) have already agreed to the controversial laws. Twitter is resisting the change since it sees the potential danger of getting involved in a blame game with a government which, especially in recent years, has become increasingly intolerant
towards criticism. While the importance of taking a strong stand against cybercrime and other malicious activities online is important, I fail to see how “Cybercrime” can be would be reduced by giving the government to remove any content it sees as unfit, especially since the platforms already have indicators in place to remove pornographic content and tag claims which are not supported by
facts. This comes after the US courts took to the companies to put a disclaimer on posts that cannot be confirmed as facts after misleading tweets from Former President Donald Trump’s account caused the country to experience riots and other uproars. While there is a country like the United States which is working on constructive solutions to its problems, India is working on installing an authoritative regime in India. While this law can be put to good use as well, it seems like the same dilemma we were in when it came to companies such as Amazon or Google using personal information about their users to further improve user experience and provide relevant content. It seems that when it comes to user data, people constantly have to let go of their privacy in the pretense of being safer or getting a better experience, which erases the comparison between Companies that work solely towards profits and Governments which are supposed to work towards the welfare of people.