An updated IT Act: Enabling local needs and global best practices

The internet has been a major driver of human development, and India has been a key contributor in the growth of the digital economy. However, while on one hand, digital transition has fuelled social and economic empowerment, on the other, it has made it possible for malicious elements to proliferate a range of online safety and security threats. In order to tackle these challenges effectively and ensure the continued growth of the digital economy, an effective principle based regulation is crucial. The Government of India has highlighted the need for an updated legislation for the digital space and is working actively to reform the 22-year-old Information Technology Act, 2000, (IT Act), which primarily governs India’s cyberspace currently.

While the government is moving in the right direction, there are critical aspects of reform needed in the IT Act from the platform regulation perspective. This has been detailed in the volume 1 of the impact assessment study by The Dialogue and IAMAI on the Indian platform regulation regime with inputs from 83 stakeholders including intermediaries like social media, e-commerce, fintech and gaming platforms as well as civil society, lawyers and women and child rights organisations. The study recommended enabling a progressive intermediary liability regime, instilling procedural safeguards for assisting law enforcement agencies, and furthering a uniform and transparent content blocking regime.

Content takedown and blocking powers

Section 69-A has been one of the most deliberated provisions of the IT Act. It empowers the government to issue orders to the intermediaries to take down or block content that undermines the national security of the country. Over the years, the judiciary has noted the need for ensuring appropriate procedural safeguards while exercising the powers under this provision. The Shreya Singhal v. Union of India was the first case that entailed an elaborate discussion on this issue. Though the Apex Court upheld the constitutionality of the provision, it noted the requirement to ensure the presence of necessary safeguards at the time of its application including a reasoned order and a right to fair hearing for the affected parties. Thereafter, several courts in the past five years have opined on the need to comprehend the limited scope of S.69-A and to subject its enforcement to reasonable checks owing to its capability of causing a ‘chilling effect’ on right to free speech. The Gujarat High Court in Gaurav Sureshbhai Vyas v. State of Gujarat and the Apex Court in the Anuradha Bhasin v. Union of India have observed that the power under this provision can only be exercised for blocking certain internet applications and not for restricting access to the internet itself. Moreover, the Calcutta High Court in Facebook Inc. v. The State of West Bengal held that in the absence of due process of law, action under S.69-A will be null and void.

While the substantive blocking power is envisaged under Section 69A, the procedure for the same has been laid down under the Blocking Rules of 2009 which require more transparency and checks in place. Rule 7 of the Blocking Rules which envisages the formulation of a committee to review the blocking orders needs reform to include retired judges and members of the civil society in addition to the government representatives. The scope of Rule 8 also needs to be enlarged to add the requirement of notifying the user or publisher of the content regarding the details of the committee hearing in accordance with the principles of natural justice. The Rules should also have a mechanism for the users to appeal against the decision of the government. Rule 16 provides an exemption to the government to keep the blocking orders confidential in the interest of national security. This Rule must be reformed to ensure reasonable checks and balances on the State power and public availability of the orders should be ensured to enable the citizens to exercise their right to constitutional remedies and the courts to exercise their power of judicial review.

In the current scheme of things, there are two parallel blocking mechanisms: one, under Section 69A of the IT Act and the other, under Rule 3(1)(d) of the IT Rules, 2021. The two provisions need to be harmoniously interpreted and a uniform blocking mechanism needs to be prescribed. Moreover, it is crucial that the blocking orders do not merely reproduce the grounds for blocking mentioned under Section 69A and are supported with detailed reasoning and evidence. In situations where the direction falls outside the ambit of Section 69A, the order should only be issued to the intermediaries when accompanied by appropriate court orders.

Law enforcement assistance, search and seizure

One of the major findings of The Dialogue and IAMAI’s impact study was the need for greater checks and balances on the powers of Law Enforcement Agencies (LEAs) to seek information assistance from intermediaries and the need for designating specific officials who can seek such requests.

According to Section 80 of the IT Act, any police officer, not below the rank of inspector or any other person working with the Central Government or State Government, permitted by the Central Government, is authorised to enter any public premises, search and make an arrest without warrant if the accused person is suspected of committing an offence under the IT Act. The provision lacks procedural fairness and safeguards to protect fundamental rights. The new IT Act framework should revisit this power. The provision empowering the LEAs to conduct search and seizure without a warrant should clearly designate the officers. Moreover, the number of such officials should be kept to the minimum to ensure proportionate and measured use of this power. There is also a need to give recognition to the more formalised legal channels that have been put in place by the intermediaries for the LEAs to seek assistance. This shall ensure that the teams who are appropriately trained for responding to legal requests for content removal are directly looped in and are able to respond promptly.

Principle based regulation to protect digital rights and promote innovation

Given the dynamic nature of technology, it is crucial that the proposed framework is implemented after extensive multi-stakeholder consultation with inputs from industry, legal and cybersecurity experts, representatives from law enforcement agencies, cyber safety organisations and civil society. Moreover, while it is essential to regulate the internet and demand accountability from the intermediaries, the proposed legislation should undertake a principle-based regulatory approach and preserve the principles of ‘safe harbour’ protection in accordance with the free speech jurisprudence envisaged in the Shreya Singhal case.

Similar to the amendments to the Companies Act, 2013 and the proposed amendments to the Legal Metrology Act, 2009, the proposed framework should follow the trend of decriminalisation and replace criminal liability provisions with a structure of corporate financial penalties. This step shall incentivise greater investment in the digital sector and decrease the economic burden of the companies especially the startups and MSMEs who struggle to hire for positions where personal criminal liability of the employees has been prescribed even in case of the company’s failures.

A statutory provision should also be envisaged under the proposed law to empower and enhance the capacity of LEAs to deal with the technological and procedural aspects of information technology. The American Invest in Child Safety Act proposes mandatory funding of 5 billion dollars along with 100 FBI agents and 65 more positions to tackle online sexual abuse. It is critical that India draws takeaways from such progressive international regulatory frameworks to enable a more safe, secure and growth enabling regime.

The author of the article is Kazim Rizvi, a lawyer and public-policy policy entrepreneur and the founder of policy think tank, The Dialogue. 

(Disclaimer: The views expressed of the author and do represent the views of DNA India.)