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Indian IT Ministry’s amendments to the 2021 IT Rules: not enough to protect rights and freedoms

Update: June 6, 2022 — On June 6, 2022, the Indian Ministry of Electronics and IT (MeitY) published a new document with proposed amendments to the IT Rules 2021. MeitY’s accompanying press note was updated, but the substance of the proposed amendments remained the same as in the previous draft, which was published for a few hours on June 2, and informed this press release. MeitY has provided 30 days for public comments.

June 2, 2022 — Earlier today, the Indian Ministry of Electronics and IT (MeitY) published a notice on their website calling for inputs on amending the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. Shortly afterwards, the document was inaccessible on the Ministry’s website. 

While the Government of India clarifies its process on this notice and the extent of this planned consultation, Access Now is urgently calling on MeitY to substantially amend the Rules, ensuring the rights of people across India are upheld. MeitY must meaningfully engage with all stakeholders and address the criticism from many quarters, including United Nations experts, that the Rules jeopardise the right to privacy and free speech

“The MeitY Rules endanger people’s rights and freedoms, and removal of such provisions should be the primary goal of any proposed amendments, and MeitY’s current draft fails to do so,” said Raman Jit Singh Chima, Asia Pacific Policy Director and Senior International Counsel at Access Now. “The version of proposed amendments that was made available today shows that the Indian Government intends to continue to impose frameworks, including on grievance redressal, that are beyond the executive branch’s legal competence, and are regrettably doing their utmost to avoid public and parliamentary scrutiny.”

The proposed amendments in the document made briefly available today fail to eliminate and modify several aspects of the Rules that put human rights at risk. Provisions on content governance continue to be plagued by vague terms, unreasonable timelines, and lack of judicial oversight, that will result in over-censorship and self-censorship; and the grievance redressal mechanism continues to confer unchecked decision-making powers on the government. The Rules are facing multiple legal challenges before Indian High Courts, including by journalists and news publishers, and certain provisions relating to government control of the media have been stayed

Further, the traceability mandate in the Rules, which has been widely criticised by civil society and human rights groups, cybersecurity and privacy experts, industry, and others, and yet it has not been proposed to be eliminated or even amended.

“Traceability undermines end-to-end encryption — a critical safeguard for people’s privacy, security, and ability to express themselves freely,” said Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now. “Encryption is particularly important for journalists, activists, and vulnerable communities, who rely on these channels for communication. Through any amendment process, this provision should be among the first to be scrapped to make way for human rights.”

Access Now appreciates the Indian  MeitY’s stated goal to ensure an open, safe, trustworthy, and accountable internet for all — which is only achievable by in-depth stakeholder engagement, and meaningful incorporation of inputs to amend a deeply flawed set of rules.