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INFORMATION TECHNOLOGY (INTERMEDIARY GUIDELINES AND DIGITAL MEDIA ETHICS CODE) AMENDMENT RULES,2023

October 9, 2023by canonsphere0
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This blog is written by Shivani Sehrawat, a 2nd year law student at Faculty of Law, University of Delhi.

INTRODUCTION

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 aims to regulate the operation of online gaming platforms and the dissemination of information about the Central Government in online databases. The Amended Rules seek to establish different agencies on various levels for securing its objectives.

LEGISLATIVE HISTORY

The Central government enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 in exercise of its powers conferred by sub-section (1) and clauses (z) and (zg) of sub-section (2) of Section 87 of the Information Technology Act, 2000. Thereafter the Rules came into force on April 6, 2023, when the Ministry of Electronics and Information Technology notified them in the Official Gazette. 

OBJECT

The primary objectives of the Rules 2023 are to ensure observance of security standards, especially on the online platforms which provide gaming facilities and news about the affairs of the central government to avoid future possibilities of personal and public loss.

Further, to ensure the completion of the purpose, the Rules provide that gaming platforms would ensure complete due diligence on their platforms by complying with all the security requirements that have been demanded and information-sharing platforms would ensure that no fake or misleading information is shared on their respective portal about the central government.

PROVISIONS OF THE ACT

  1. ONLINE GAMING INTERMEDIARY 

The Rules, 2023 inserts several new provisions which define numerous terms related to gaming activities as provided by online platforms and also prescribe that the prevalent due diligence requirements as applicable to online intermediaries would also be applicable on the gaming intermediaries along with various other legal compliances for conformity.

A. Definitions 

“Online game” means a game that is offered on the Internet and accessible through a computer facility.

“Online gaming intermediary” means any intermediary that enables the users of its computer resource to access one or more online games.

“Online real money game” means an online game where a user makes a deposit in cash or kind with the expectation of earning winnings on that deposit.

B.Due Diligence

Rule 3 provides that the online gaming intermediary would observe all the due diligence requirements as enshrined in the Rules while discharging its duties which includes making its users aware of its privacy policies, rules, regulations and user agreement and keeping them updated periodically; making all the reasonable efforts to ensure that the users does not transmit or share any kind of unlawful information or content on its platform as to violate any existing law of the country; ensure its users of reasonable expectation of  privacy, accountability and transparency while using its services; and utmost respect for the fundamental rights of its citizens; to maintain a Grievance redressal mechanism on its portal for resolving the disputes of its users within the prescribed statutory time limit.

C. Additional Due Diligence

Rule 4 prescribes that an online gaming intermediary that provides online real game facility will appoint a Chief Compliance Officer who shall ensure compliance with all the Acts and Rules while the Resident Grievance Officer would be responsible for publishing periodical reports of legal compliances by the concerned intermediary. Further, it would maintain a standard mechanism for ensuring the smooth functioning of its purposes without causing any damage to individual users and also to ensure proper identification and verification for money-related transactions.

D. Verification by Self-Regulatory Body

Rule 4A mandates that the Ministry of Electronics and Information Technology designate numerous online gaming self-regulatory bodies for verifying online real money games as a permissible online real money game after making all the necessary inquiry for a specified duration and would also endeavor to ensure that the permissible online real money games are in conformity with the rules while regulating their content.

  1. VERIFICATION OF INFORMATION ABOUT CENTRAL GOVERNMENT 

The Rules provide that any information related to the business of the central government which is identified by the fact check unit as false shall be removed by the concerned intermediary from its platform.

A. Duty of Intermediary to follow due diligence

Rule 3 mandates that not only an intermediary would inform its users but also itself would make all reasonable efforts to ensure that no wrong information is hosted or shared on its respective platform.

B. Identification of information

The Rules explain that if any information related to any business of the Central Government as available online, is identified as fake or false or misleading by the fact check unit of the Central Government then the concerned intermediary would have to remove the information as instructed by the Ministry of Electronics and Information Technology.

C. Fact Check Unit

The Press Information Bureau has been appointed as the Fact Check Unit of the Central Government by the Ministry of Electronics and Information Technology through a notification in the Official Gazette, therefore, PIB has the power to pass any order to ensure compliance with Rules and non-observance of the order by the concerned intermediary would result in losing the safe harbour protection as provided by Section 79 of the Information Technology Act, 2000.

NEEDS & SIGNIFICANCE OF THE AMENDED RULES

The amendment in the IT Rules 2021 was a necessary requisite as cases of fraud on online gaming platforms were increasing rapidly across the country and due to want of any specific law which could regulate their activities, the individuals were suffering huge amounts of monetary loss along with violation of their fundamental rights. Even the survey report of PWC also mentioned in its second edition that more than 57% of fraud are committed on online platforms which includes monetary transactions and one of the major reasons is the absence of regulatory mechanism. 

Similarly, there has been a remarkable development in the spread of fake news about the government in the last couple of years due to rapid advancement in technology and easy accessibility, especially during the pandemic which resulted in severe chaos across the frontier among the masses and widespread aggression against the union government. Consequently, the government felt it necessary to maintain a mechanism which regulates the spread of false and fake information on online platforms specifically, as sharing and spread of any sort of information is very convenient on these platforms without any requirement of verification which in itself is a leading factor to demand a control mechanism. 

Thus, the need to provide  a regulatory mechanism to control the affairs and operations of online platforms is necessary to ensure the protection of individuals against any harm including access to wrong information about  government activities which has the capacity to result in hazardous effects across the territory of the nation.

CRITICISM OF THE AMENDMENT RULES 2023

Despite the very fact that the amendment in the 2021 Rules was a need of the hour to ensure the security of the citizens, the Amended Rules have been severely criticized and condemned by the general public, legal practitioners, academicians and journalists throughout the country for violating the fundamental principles of the Constitution of India and core values of the democracy.

  1.  RULES ARE BEYOND THE SCOPE OF THE ACT

The Information Technology Act, of 2000 empowers the central government to make rules for specifying the requirements of due diligence to be observed by intermediaries for claiming the exemption under the Act, although, the new Amended Rules, 2023 create a new category of false and fake information for regulating and restricting the content available on the website of the intermediaries. The creation of this new category is beyond the scope of the delegated power of the central government as the Act does not provide for the regulation of fake information and that too by an executive body of the government.

  1. VIOLATION OF ARTICLE 19 OF THE COI

Article 19(1)(a) of the Constitution of India grants the fundamental right to freedom of speech and expression to every citizen of the country and imposes certain reasonable restrictions on the exercise of the right. It has been repeatedly held by the Apex Court of the Country in its numerous judgments that the right under Article 19(1)(a) can be restricted only on the grounds mentioned in Article 19(2) of the Constitution. Therefore, the Amended Rules which provide for the deletion of fake or false information is violative of the fundamental right as it is an additional ground which seeks to restrict the freedom of speech and expression and cannot survive legally as it is not a Constitutionally recognized restriction.

  1.  CONTRARY TO CONSTITUTIONAL MORALITY

The provision of control and identification of information about the business of the central government whether as true or false by the fact check unit of the Press Information Bureau is contrary to the freedom and right of journalists and press as it seeks to hinder their professional privilege of disseminating news and opinion which is integral to their occupation. 

Moreover, even The Indian Newspaper Society urged the Ministry of Electronics & Information Technology to withdraw the IT Amendment Rules, 2023, as it gives sweeping powers to the central government to determine fake  false or misleading information and take down such content, which is further contrary to democratic values of the nation as it is the right of the press to determine that what sort of information is necessary to be shared with the public and not of the government. Moreover, some of the press media houses have named the Amended Rules as a mode of censorship of the freedom of media.

  1. AGAINST THE PRINCIPLES OF NATURAL JUSTICE

The Amended Rules make the central government as the sole authority to determine whether a particular information is truthful or not which amounts to the delegation of excessive power and not only it is beyond the scope of the IT Act, 2000 but also against the provisions of the Constitution of India, thus, violating the Doctrine of Ultra Vires. Similarly,  making the central government the final arbiter to determine the authenticity of information about its business is contrary to the principle of Nemo judex in causa sua as the government is made the judge in its own case.

  1.  RULES ARE ENACTED BEYOND THE JURISDICTION

The central government only have the power to make laws on communication as specified in Entry 31 of the Union List in the Seventh Schedule of the Constitution, consequently, the Rules as made are applicable only to the extent of communication on the platform of online gaming intermediaries and any application beyond that would not be legally acceptable as the central government does not have the competence to enact law for that matter.

CONCLUDING REMARKS

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 has a definite objective of providing a regulatory mechanism for controlling the fraudulent conduct of individual users on the platforms of online intermediaries and also aims at ensuring compliance with security standards for reducing the increasing rate of cyber offences, however, due to lack of accountability and proper safeguarding procedures, the Rules have received a severe backlash and strict scrutiny from all the concerned interest groups.

Moreover, the Rules grant excessive power to the central government without any need which is violative of basic democratic values and constitutional rights of different stakeholders across the spectrum without prescribing any safeguard against the abuse of the power. Similarly, the Rules ambiguously seek to regulate the gaming intermediaries without stipulating any appropriate method and procedure for the identification of the concerned intermediaries.

However, despite the ruthless criticism of the Rules, the Amended Rules, 2023 has a legitimate purpose which is necessary to be achieved in the larger public interest as a spread of false information about government activities and affairs of central government might lead to serious security concerns on national level and even to public riots which has become a new Indian reality since 2020. Also, if the operations of gaming platforms are left uncontrolled then there is a probability that these intermediaries would cause irreparable harm to their users as with the passage of time, the number and rate of online gaming users are growing cumulatively throughout India.

Henceforth, the Amended Rules, 2023 depict the need for their enactment, however, the faults in its drafting do not do justice to its objectives, hence, requiring certain modifications in its provisions. 

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