THE Information Technology Act (Intermediary Guidelines and Digital Media Ethical Code) 2021, notified on February 25, 2021, has come up against a legal hurdle in various states for its constitutionality. Two cases have been filed in the Madras High Court, first by the Carnatic musician TM Krishna and then by the Digital News Publishers Association, a 13-member collective of the biggest news media companies. Two cases have also been filed in Delhi High Court, one in Karnataka and two in Kerala.
While the ministry of information and broadcasting is quietly collecting information about digital publishers and encouraging setting up of a self-regulatory framework, the ministry of electronics and information technology does not need to take any action as non-compliance of the rules only prevents an intermediary from using the safe harbour provision in Section 79 of ITA 2000/8.
Section 79 is not a penal section and it cannot be used to book an offence. However, if an intermediary is contributing to the commission of any offence, it may become liable for assisting and abetting in the said offence. It is in this context that Twitter has been made a party to an FIR in UP; it is related to the publishing of a fake video message as well as the India map issue.
There is no constitutional guarantee that any intermediary will be free from judicial scrutiny in case it is part of a conspiracy or used as a tool to commit any other offence. The only effect of non-compliance of the guidelines is loss of one defence—“I am an intermediary and I am protected from being held liable for the offence for the reason that the offending message was hosted on the platform.”
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