The draft IT second amendment rules cannot become a route to create new substantive obligations outside the rule-making framework of the IT Act, industry body Nasscom said.
Its views on the rules published in March were echoed by digital rights advocacy groups Software Freedom Law Centre (SFLC.in) and Internet Freedom Foundation (IFF).
Originally open until April 14, the deadline for stakeholder feedback on the rules was later extended to May 7.
Ashish Aggarwal, vice president and head of public policy at Nasscom told ET: “The key issue with rule 3(4) is one of drafting.”
Clarifications, advisories, SOPs, codes of practice or guidelines issued by the IT ministry may be useful to operationalise existing due diligence but they cannot become a route to create new substantive obligations outside the rule-making framework of the IT Act, he said.
That distinction is not coming through, he added.
Directions or orders issued under a valid statutory power are different from broad advisories or codes of practice, Aggarwal pointed out.
“If these instruments are linked to Section 79 due diligence and safe harbour, the drafting must make clear that they are confined to existing obligations, have a clear statutory basis and defined scope,” he said.
The proposed rules tie a platform’s (e.g., X, YouTube, Meta) legal immunity/safe harbour protection under Section 79 of the IT Act, to its real-time obedience to executive orders exposing platforms to civil and criminal liability for user content.
On Rule 8(1), our concern is that the proposed drafting brings intermediaries within Rules 14, 15 and 16 of Part III, he said.
Intermediaries should continue to comply with lawful, content-specific directions under Rules 15 and 16, he added.
“The issue is Rule 14. It is part of a publisher-style Code of Ethics oversight framework. Intermediaries should not be treated as editors or publishers of third-party user-generated content merely because such content relates to news or current affairs,” Aggarwal explained.
We also do not think this should be addressed by redefining “news and current affairs content”, he said. The existing definition of publisher already covers entities engaged in systematic business, professional or commercial publishing activity.
“Ordinary user-generated content on intermediary platforms should not get pulled into a publisher-style framework merely because it discusses news or current affairs,” Aggarwal said.
Separately, even where implementation guidance is issued under Rule 3(4), compliance has to be in the context of the operating model, service design and business realities of each entity, he said. Usually, there is no one-size-fits-all application of an advisory or code of practice, he added.
The Digital Media Ethics Code (Part III), previously limited to professional publishers, now extends to ordinary users who post news and current affairs. This brings citizen journalists, influencers, and regular social media users under the direct oversight of the Ministry of Information and Broadcasting (MIB).
SFLC.in has raised several concerns too like the threat of losing safe harbour may lead platforms to over-censor content to avoid government friction.
By making advisories binding, the government can effectively create new “laws” without the parliamentary review required for formal rules, it said.
On April 21, MeitY published further proposed amendments to the IT Rules, 2021. The new changes would require labels on AI-generated or synthetic content to remain continuously and clearly visible throughout the entire duration of the content, expanding the earlier requirement of merely “prominent” disclosure.
“These proposed rules are not limited to digital news platforms. They could affect all users of social media and generative AI tools, raising serious questions about how ordinary users, creators, and platforms are expected to comply with such sweeping obligations,” IFF said.
“The requirement for continuous labelling also raises major technical and legal concerns. Once AI-generated content is downloaded, edited, or reposted across platforms, intermediaries often lose control over how that content appears or whether labels remain attached,” IFF added.
