The Ministry of Electronics and Information Technology (MeitY) said the FAQ was intended to “provide clarity” on the rules and “explain the nuances of due diligence” that intermediaries must follow, but the IFF said many of the claims were presented as fact in the document. .
The first of these was MeitY’s claim that he invited the public to comment on the draft rules in December 2018 and adopted the rules based on the comments and suggestions he had received. The IFF said that while there was indeed a public consultation in 2018, the IT rules for 2021 are “drastically different” from the draft that was published at the time. “No public consultation has taken place for this version of the rules,” he said.
The IFF also said the government’s claim that the rules “focus on protecting the online privacy of individuals and are consistent with the fundamental right to privacy” was incorrect. He said the rules are not compatible with the right to privacy and in fact seriously infringe the right to privacy. “In particular, Rule 4 (2) significantly weakens end-to-end encryption, which has now become the privacy standard for mobile messaging platforms,” IFF said. Rule 4 (2) states that messaging platforms such as WhatsApp, Facebook Messenger and Telegram “must allow the identification of the first sender of information on their computing resource, as may be required by a court order issued by a court or a competent authority ”.
The IFF responded to the government’s claim that intermediaries should only be able to locate the first sender of a message or message when directed to do so. Instead, he said, these services should allow first sender traceability for all texts, at all times, “because it is impossible to predict which message may receive an injunction against it for finding the first. sender”.
The new IT rules have been challenged in various courts since going into effect earlier this year. Two high courts – Bombay and Madras – have suspended parts of the rules that seek to regulate digital news publishers and OTT platforms that have a physical presence in India or “carry out a systematic commercial activity of making content available by India ”.
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On August 14, the Bombay High Court suspended Computer Rules Rule 9 (1) and (3), which requires digital news media and online publishers to adhere to the “Code of Ethics” which is part of the rules. He said that on the face of it these two provisions violate the fundamental right to freedom of expression and also run counter to the substantive provisions of the Information Technology Act 2002. The following month, the Madras High Court suspended the same two clauses and said the suspension should go into effect across India, Livelaw reported.