Introduction
The proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 mark a significant shift in India’s digital regulatory framework. While aimed at strengthening accountability, enhancing compliance, and aligning with evolving data protection norms, these changes raise critical questions regarding their impact on privacy, free speech, and platform autonomy. By expanding state oversight and imposing additional obligations on intermediaries, the amendments blur the line between regulation and control. This rule-wise analysis examines the key provisions, highlighting both their potential benefits and the constitutional and practical concerns they may engender in the digital ecosystem.
Proposed Rules 3(1)(g) and 3(1)(h):
The following phrase is proposed to be added in both clauses:
“without prejudice to any requirement relating to the preservation or retention of information applicable to intermediaries under the Act or any other law for the time being in force.”
The proposed amendments enable application of other laws dealing with data retention and deletion requirements. The 180 days period prescribed under clauses (g) and (h) will not adversely affect the application of other laws. This is a welcome step as data retention requirements under other laws might vary.
For instance, as per Rule 8(3) of the Digital Personal Data Protection Rules, 2025 (hereinafter referred to as ‘DPDP Rules’), data fiduciaries are obliged to retain personal data, associated traffic data and other logs of the processing for a minimum period of one year from the date of such processing. Therefore, the abovementioned amendment paves way for the application of other statutes like the DPDP Act and Rules.
But in order to ensure safety and security of such personal data, all data fiduciaries including government entities must implement reasonable security safeguards as per Rule 6 of the DPDP Rules and standard data security practices in accordance with ISO 27001 standards. This will ensure that such data retention mandates do not pose risk to the right to privacy, recognised as a fundamental right under Article 21 in K.S. Puttaswamy v. Union of India (2017 10 SCC 1).
Section 17(2)(a) of the DPDP Act, allows the Central Government to notify State instrumentalities to whom the provisions of the DPDP Act shall not apply. Such notification may be issued in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, maintenance of public order or preventing incitement to any cognizable offence. This exemption raises concerns regarding the efficacy of the Rule 6 mandate. Though the obligation of intermediaries is absolute but once such data is transferred to State authorities, such exemptions might allow them to process data without implementing security measures.
In order to ensure proper and secure data handling, and compliance with privacy principles like data minimization, storage limitation and integrity of data, such exemptions must not give sweeping powers to the government.
We suggest that the appropriate amendments must be made to the DPDP Act in order to impose an absolute obligation on every data fiduciary, including State instrumentalities to implement reasonable security safeguards and be liable for data breaches. This will ensure that such data retention mandates afford assurance of data security to the citizens.
Proposed Rule 3(4):
The following rule is proposed to be added:
“Compliance with Clarifications, Advisories and Directions issued by the Ministry: (a) An intermediary shall comply with and give effect to any clarification, advisory, order, direction, standard operating procedure, code of practice or guideline issued by the Ministry, by order in writing, in relation to the implementation, interpretation or operationalisation of the requirements prescribed under this Part;
(b) every such clarification, advisory, order, direction, standard operating procedure, code of practice or guideline referred to in clause (a) shall—
(i) be issued in writing;
(ii) clearly specify the statutory provision or legal basis under which it is issued;
(iii) specify the scope, applicability and compliance requirements in respect of the intermediary or class of intermediaries to whom it applies; and
(iv) be consistent with the provisions of the Act and these rules;
(c) compliance with any clarification, advisory, order, direction, standard operating procedure, code of practice or guideline issued under clause (a) shall form part of the due diligence obligations of the intermediary under section 79 of the Act.”
The abovementioned amendment obliges intermediaries to comply with every clarification, advisory, order, direction, standard operating procedure, code of practice or guideline issued by the Ministry. Further, clause (c) of the proposed Rule 3(4), makes compliance with the above a part of an intermediary’s due diligence obligations under Section 79(2)(c). Failure to comply with the same will lead to the loss of safe harbour protection of intermediaries.
Firstly, the abovementioned amendment does not provide a publication mandate. As per clause (b) of the proposed Rule 3(4), the following conditions must be fulfilled while issuing a clarification, advisory, order, direction, standard operating procedure, code of practice or guideline:
- Issued in writing
- Specify the statutory provision or legal basis
- Specify the scope, applicability and compliance requirements
- Consistency with provisions of the Act and rules
The abovementioned conditions do not impose any publication obligation upon the Ministry or its officers. In the absence of such publication or any other method of public accessibility of such documents, the legal basis of such actions will be non-transparent, which might allow the government to issue orders arbitrarily. This will curb freedom of speech and transparency of government decisions.
Secondly, such a move would reduce platform accountability towards users as intermediaries will be able to justify takedowns by citing undisclosed government directions. In Shreya Singhal v. Union of India (AIR 2015 SC 1523), the Supreme Court noted, “The Rules further provide for a hearing before the Committee set up – which Committee then looks into whether or not it is necessary to block such information. It is only when the Committee finds that there is such a necessity that a blocking order is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person” i.e. the originator is identified he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made.” The proposed amendments seek to circumvent the existing safeguards and render citizens clueless as well as remedy less in such circumstances.
Proposed Rule 8:
The following proviso is proposed to be added to Rule 8:
“Provided that for the purposes of rules 14, 15 and 16, the rules made under this Part shall apply to—
(a) intermediaries; and
(b) news and current affairs content hosted, displayed, uploaded, modified, published, transmitted, stored, updated or shared on the computer resources of the intermediaries by users who are not publishers.”
The abovementioned draft amendment seeks to increase the scope of the Ministry of Broadcasting’s power by bringing intermediaries and common internet users within the ambit of the Ministry’s jurisdiction for the purposes of Rule 14 (Inter-Departmental Committee), Rule 15 (Procedure for issuing of direction) and Rule 16 (Blocking of information in case of emergency).
The proposed amendment raises the following concerns:
- Violation of Citizens’ Free Speech:
The draft amendment seeks to regulate intermediaries and general users who are not publishers. Many individuals express their bona fide opinions through social media platforms as good samaritans. Furthermore, every common citizen of India has the right express opinion on political, economic, social and national issues through these platforms. The proposed amendment gives broad powers to the Ministry to censor online content even when it may fall within the domain of protected speech.
In Vinod Dua v. Union of India (AIR 2021 SC 3239), the accused journalist was alleged to have uploaded a video on social media by making such false allegations for which he was prosecuted for sedition. The Supreme Court held that since the statements were not made with the intent to incite people, the accused was held to be within permissible limits and the prosecution was unjust and violative of Article 19(1)(a). Therefore, the proposed amendment violates the court’s rationale in Vinod Dua which allowed for individuals to voice their opinions on social media.
In Faheema Shirin v. State of Kerala (AIR 2020 Kerala 35), the Kerala High Court noted that Article 19(1)(a) ensured the right to expression, including access to the internet. Furthermore, In Maneka Gandhi v. Union of India (1978 AIR 597), the Supreme Court held that freedom speech and expression had no geographical limitations. It encompassed citizens’ ability to seek information and communicate ideas with people in India and overseas.
- Violation of Freedom of Press:
Many journalists and media houses use social media intermediary platforms to amplify their voices. These particularly belong to the most oppressed, impoverished and marginalised backgrounds. Article 19(1)(a) encompasses freedom of press as a constitutional guarantee. In Romesh Thappar v. State of Madras (1950 AIR 124), the Supreme court observed, “…freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.” In Indian Express Newspapers v. Union of India (1986 AIR 515), The Supreme Court held, “The expression ‘freedom of press’ has not been used in Article 19 of the Constitution but, as declared by this Court, it is included in Article 19(1)(a) which guarantees freedom of speech and expression. Freedom of press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers.”
Moreover, expression through the medium of internet has acquired great significance in the modern world. Therefore, freedom of press over the internet without fear of over censorship poses a risk to the freedom of press. In Anuradha Bhasin v. Union of India (AIR 2020 SC 1308), the Supreme court observed, “…we may note that this Court, in a catena of judgments, has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.”
- Violation of Article 19(1)(g):
Many small journalists and small media houses rely on the intermediary infrastructure for carrying out their day-to-day operations. Intermediary platforms like YouTube are their main source of income. Further, they use such platforms to advertise their journalism and seek donations from the public. Therefore, restrictions on their free operation will curtail their right to practise their profession under Article 19(1)(g) and their right to livelihood under Article 21.
In Anuradha Bhasin v. Union of India (AIR 2020 SC 1308), the Supreme court held, “We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g).”
Similarly, the livelihood of various employees and individuals is linked to such media houses operating on intermediary platforms. In Olga Tellis v. Bombay Municipal Corporation (1986 AIR 180), the court observed that an equally important facet of Article 21 (right to life and liberty) was the right to livelihood because, no person could live without the means of living, that is, the means of livelihood. If the right to livelihood was not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation.
Conclusion:
In conclusion, while the draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 reflect the Government’s continued commitment to fostering a safe, accountable and trusted digital ecosystem, certain provisions raise significant constitutional and practical concerns. The proposed changes to data retention rules are a welcome step towards harmonisation with other legal frameworks such as the DPDP regime, however, the absence of uniform and enforceable security obligations, especially for State instrumentalities poses serious risks to the right to privacy under Article 21. Ensuring that all data fiduciaries, including government entities, are subject to strict data protection and accountability standards is essential to maintain public trust.
Further, the introduction of Rule 3(4), which mandates compliance with a wide range of Ministry-issued directions without a corresponding obligation of publication or transparency, risks enabling opaque and potentially arbitrary state action. By linking such compliance to the preservation of safe harbour protections under Section 79, the amendment may compel intermediaries to over-comply, thereby undermining user rights and diluting procedural safeguards recognised by the judiciary. This shift could weaken platform accountability and restrict users’ ability to seek remedies against unjustified content takedowns.
The proposed expansion of governmental powers under Rule 8 to include not only intermediaries but also ordinary users represents a substantial departure from the existing regulatory framework. By bringing individual users within the ambit of content regulation mechanisms designed for publishers, the amendment risks excessive censorship and a chilling effect on free expression. It may disproportionately impact independent journalists, small media entities, and individuals who rely on digital platforms for expression, profession, and livelihood, thereby infringing Articles 19(1)(a), 19(1)(g), and 21 of the Constitution.
Taken together, these amendments indicate a shift from a framework that previously sought to balance intermediary liability with user freedoms towards one that potentially expands state control over digital spaces. It is therefore imperative that the proposed rules be revisited to incorporate stronger safeguards for transparency, accountability, and proportionality, ensuring that regulatory objectives are achieved without compromising constitutional guarantees and the foundational principles of a free and open internet.
