By the end of this year India should have a new Digital India Act to replace the IT Act which was enacted over 22 years ago. Admittedly there has been a lot of concern about what this Act would contain knowing the Central Government’s obsessive desire for control of the digital space. The post public consultation draft of the Bill, which was expected to be out early this year, is now expected around July.
In the early days of the Internet there was not as much need for regulation as there is now. Data Privacy, Data Protection, E-commerce, cybercrime, cyber bullying, online gaming, hate speech… the list of digital activities that need regulation is endless.
The worry is about how the government will come up with a transparent framework that will fulfil the need for keeping people safe and ensuring violators are punished without unduly trampling on the rights of the same people the Act is meant to protect. Recently the government notified the amendments to the IT Rules 2021(Intermediary Guidelines and Digital Media ethics code 2021) related to online gaming and importantly addressing the issue of fake news about the Government.
While the self regulation of online gaming was welcomed even though the self regulated bodies need to be approved by the government, it was the government appointing the PIB as a “Big Brother” to decide on what news was fake that has stirred a hornet’s nest, raising concerns about what could be in store in the Digital India Act.
Many have pointed out that the IT Act itself does not give the power to the government to be the final authority to fact check news about itself. So the IT Act was bypassed through these rules is the allegation. The Modi government’s limited patience with dissenters and their views has meant that many fear that the new Digital Act could give the State even more control over our day to day online activities , including social media than what they already have.
Nikhil Pahwa founder of Medianama, an organisation that supports a fair and open Internet has been scathing about the efforts of the Govt to enact rules to regulate whatever it wishes to even if the Act itself gives it no power to do so. The IT rules enacted since 2020 face legal challenges and the last word has not been said about their validity as yet, as the matter is still pending in Court. Likewise it is very likely that these present amendments will also be challenged in the Courts.
Nikhil tweeted, “The IT Rules amendments since 2020 essentially bypass the IT Act. They bring about a regulatory regime for streaming video, news orgs, news aggregators, social media (encryption+privacy) and now gaming and fact checking. The IT act doesn't allow for rules to do this. The push for the Digital India Act is to legitimise these probably illegal rules. So you create rules to do what you want to even if the law doesn't allow it.”
On its part the government speaks about the myriad dangers of the digital world and about how the IT Act enacted over 2 decades ago is woefully inadequate to legislate today. It points to a number of newer forms of cyber threats to justify the need for a new Digital Act. It is indeed true that in such a rapidly evolving eco system laws also need to change to keep pace with technologies.
But the Data Protection Bill that the government has been trying to enact has also been delayed and is now expected to be tabled during the monsoon session of Parliament. This too has raised significant concerns as it allows the government to violate the data protection offered in “public interest” for a host of ill defined reasons like in the interest of the sovereignty and integrity of India, maintenance of public order, security of the State, friendly relations with foreign States, preventing incitement to the commission of any cognizable offence related to the above etc.
Essentially government can violate the provisions using one of these reasons and as these are not defined in any detail there is little that can be done. Also there is a Data Protection Board that will adjudicate and its members will be appointed by the government. All these have also raised concerns on how effective the Data Protection Bill would really be.
The online gaming industry has faced a slew of Court cases and actions by various state governments who are keen to curb online “gambling.” While the new rules effectively mean an endorsement that online games of skill (including online rummy) are legal the regulations that come with the new rules and the self regulation through SRB’s mean that it will take a while before we know how these rules would impact the Industry.
Today, almost every Indian uses the Digital space. About 850 million Indians access the Internet. E-commerce is now the norm and the social media explosion shows no signs of slowing. A fair, transparent and comprehensive Digital India Act which will balance the needs of user safety and protection with the right to free speech and expression is desperately needed. Going by the track record of the present government that seems unlikely to materialise.
—The author Sumanth C. Raman is a television anchor, political analyst and a sports commentator. The views expressed are personal.
Read his previous articles here
(Edited by : C H Unnikrishnan)
First Published: Apr 12, 2023 8:50 AM IST
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