Digital Media, Social Media, and Freedom of Speech

Analysis of Article 19 and the Information Technology Act in India:

Introduction

The proliferation of digital and social media platforms has fundamentally reshaped the landscape of communication, public discourse, and the exercise of fundamental rights in India. These platforms offer unprecedented avenues for expression, information dissemination, and civic engagement.¹ However, this digital transformation has concurrently presented significant regulatory challenges, stemming from the rapid spread of misinformation, hate speech, threats to national security, public order concerns, and the potential for infringement upon individual privacy and reputation online.³

This report examines the intricate and often contentious relationship between the fundamental right to freedom of speech and expression, guaranteed under Article 19(1)(a) of the Constitution of India, and the state’s attempts to regulate the digital sphere. The central conflict lies in balancing this cherished constitutional freedom with the perceived need to control online content and manage the activities of internet intermediaries. This tension is primarily manifested through the application and interpretation of the Information Technology Act, 2000 (IT Act) and its subsequent amendments and rules, most notably the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021).³

The objective of this report is to provide an expert-level legal analysis of the constitutional and statutory framework governing digital media, social media, and free speech in India. It delves into the scope and judicial interpretation of Article 19(1)(a) and the permissible ‘reasonable restrictions’ under Article 19(2) as applied to online platforms. It scrutinizes key provisions of the IT Act, such as Section 69A (content blocking) and Section 79 (intermediary liability/safe harbour), and examines the significant changes introduced by the IT Rules 2021. The analysis traces the evolution of judicial trends through landmark precedents from the Supreme Court and High Courts, assesses the current legal status and ongoing disputes, and explores future prospects considering technological advancements like Artificial Intelligence (AI) and potential legislative reforms such as the proposed Digital India Act. This analysis relies exclusively on authoritative sources, including constitutional texts, statutes, rules, court judgments, government documents, and recognized legal academic publications, with precise citations provided for all assertions.

The report proceeds by first examining the constitutional foundations under Article 19. It then analyzes the statutory framework established by the IT Act and the IT Rules 2021. Subsequently, it identifies key legal and constitutional issues arising from their interaction, followed by a review of landmark judicial decisions. The report then assesses the current legal landscape and ongoing controversies before concluding with an analysis of future challenges and potential directions in digital regulation.

Section 1: Constitutional Moorings: Article 19 and Digital Expression

1.1 The Ambit of Freedom of Speech and Expression [Art. 19(1)(a)]

Article 19(1)(a) of the Constitution of India guarantees to all citizens the fundamental right “to freedom of speech and expression”.⁸ This right is considered a cornerstone of Indian democracy, often described as the “mother of all liberties” and the “bulwark of democratic Government”.¹¹ Its philosophical roots lie in the Preamble’s solemn resolve to secure for all citizens the “liberty of thought and expression”.¹¹ The essence of this freedom is the ability to think and speak freely, and to obtain and impart information through various mediums without fear of retribution or undue restriction by the state.¹²

Indian courts have consistently interpreted Article 19(1)(a) expansively, recognizing that “speech and expression” encompass a wide array of activities beyond mere verbal communication. This judicial expansion has brought several facets under its protective umbrella, including:

• Freedom of the Press: Recognized early on as implicit within Article 19(1)(a), essential for democratic organizations.¹¹ Landmark cases like Romesh Thappar v. State of Madras (1950) and Indian Express v. Union of India (1985) established the press’s significant role and the courts’ duty to uphold its freedom against laws and administrative actions that abridge it.⁸
• Freedom of Commercial Speech: The right extends to commercial advertisements and communications.¹²
• Right to Broadcast: Includes the freedom to disseminate information through electronic media.¹²
• Right to Information: Crucially, the freedom includes the right to impart and receive information, encompassing the freedom to hold opinions. The Supreme Court in Union of India v. Assn. for Democratic Reforms (2002) highlighted that uninformed citizenry makes democracy a farce.¹²
• Right to Criticize: The freedom inherently includes the right to critique government actions and policies, a vital aspect of democratic accountability.¹²
• Right to Expression Beyond National Boundaries: As held in Maneka Gandhi v. Union of India (1978), this freedom is not geographically confined.¹²
• Right Not to Speak or Right to Silence: The freedom to speak also implies the freedom not to speak. In Bijoe Emmanuel v. State of Kerala (1986), the Supreme Court upheld the right to silence of students who conscientiously objected to singing the national anthem based on religious beliefs.¹⁰

This broad judicial understanding provides a robust constitutional basis for protecting diverse forms of online activity. The principles established for traditional media have been explicitly extended by the judiciary to the digital realm. The Supreme Court, in pivotal cases like Shreya Singhal v. Union of India (2015) and Anuradha Bhasin v. Union of India (2020), affirmed that the protections of Article 19(1)(a) apply fully to speech and expression conducted via the internet and digital media.⁶ The internet is recognized not just as a platform but as an essential medium for exercising these fundamental rights.¹⁷ Therefore, attempts to regulate various online actions, such as sharing content, commenting, or maintaining anonymity, potentially engage the protections of Article 19(1)(a).²

1.2 Permissible Restrictions and Judicial Interpretation [Art. 19(2)]

While Article 19(1)(a) guarantees broad freedom, it is not absolute.¹⁰ Article 19(2) empowers the State to impose “reasonable restrictions” on the exercise of this right, but only on specific, enumerated grounds.⁹ These grounds are:

• Sovereignty and integrity of India
• Security of the State
• Friendly relations with foreign States
• Public order
• Decency or morality
• Contempt of court
• Defamation
• Incitement to an offence

The judiciary plays a crucial role in determining the validity of any restriction imposed under Article 19(2). The term “reasonable restrictions” implies that the limitation imposed should not be arbitrary or excessive, beyond what is required in the interest of the public.²⁵ Courts have evolved several tests to assess reasonableness:

• Authority of Law: The restriction must be imposed by or under the authority of a duly enacted law, not merely by executive action.²⁴
• Nexus with Grounds: The restriction must have a direct and proximate nexus, or a rational connection, with one of the specific grounds mentioned in Article 19(2).²⁴
• Proportionality: The restriction must be proportionate to the object it seeks to achieve. This involves balancing the fundamental right against the social control objective. Courts consider factors like the nature of the right infringed, the purpose of the restriction, the extent and urgency of the evil sought to be remedied, whether the restriction is excessive, and prevailing conditions.²⁵ Crucially, the restriction imposed must be the least restrictive measure available to achieve the stated objective.¹⁸
• Substantive and Procedural Reasonableness: Reasonableness encompasses both the substance of the restriction and the procedure prescribed for its enforcement.²⁵

The interpretation of “public order” as a ground for restriction has seen significant evolution and debate. Initially, post-Romesh Thappar, the courts took a narrower view.²⁶ However, the Constitution (First Amendment) Act, 1951, explicitly added “public order” and “incitement to an offence” to Article 19(2), partly in response to judicial decisions striking down restrictions.⁸ This legislative action revealed an early instance of the ongoing tension between judicial safeguarding of speech and governmental desire for broader regulatory power, a dynamic that persists in the digital context. Subsequently, in Ramji Lal Modi v. State of U.P., the Supreme Court upheld Section 295A of the Indian Penal Code (insulting religious beliefs) based on its “calculated tendency” to cause public disorder, rejecting a stricter proximity test.²⁶ However, a shift occurred in Superintendent, Central Prison v. Ram Manohar Lohia, where the Court narrowed the interpretation, requiring a “proximate link” or direct connection between the speech and public disorder.²⁶ This was further refined in cases like Madhu Limaye v. SDM, Monghyr, distinguishing ‘public order’ from mere ‘public tranquillity’.²⁶ The proximity test was affirmed in S. Rangarajan v. P. Jagjivan Ram, emphasizing that the anticipated danger must not be remote or conjectural but have a proximate nexus to the expression.²⁶ Despite the ‘proximate link’ test being the established legal standard, concerns exist about its inconsistent application in practice. There are instances where ‘public order’ has been invoked for actions like internet shutdowns during exams or banning books for potentially hurting sentiments, which seem distant from the judicially mandated threshold of imminent, serious disorder.²⁶ This suggests a potential gap between the high constitutional standard and its practical application by executive authorities, creating uncertainty.

Crucially, the Supreme Court has affirmed that the grounds listed in Article 19(2) are exhaustive. The state cannot impose restrictions on freedom of speech and expression on any ground not explicitly mentioned in this clause.²⁷

1.3 Extending Constitutional Protection to the Digital Realm

As established, the judiciary has unequivocally extended the protection of Article 19(1)(a) to the internet.¹⁵ The Supreme Court in Anuradha Bhasin explicitly recognized that the internet serves as an essential medium for exercising the right to freedom of speech and expression under Article 19(1)(a) and the right to practice any profession or carry on any occupation, trade or business under Article 19(1)(g).¹⁷

However, applying traditional free speech doctrines, largely developed in the context of print and broadcast media, to the unique characteristics of digital and social media presents distinct challenges.³ The internet facilitates instantaneous, global communication on an unprecedented scale. Information can go viral rapidly, crossing jurisdictional boundaries. The role of intermediaries – platforms that host, transmit, and sometimes curate user-generated content – adds layers of complexity absent in older media paradigms. Issues such as anonymity, the permanence of digital information, the scale of content moderation required, and the global nature of platforms necessitate a nuanced application of constitutional principles.

Section 2: Statutory Regulation: The IT Act, 2000 and IT Rules, 2021

2.1 Legislative Intent and Key Provisions of the IT Act, 2000

The Information Technology Act, 2000 was primarily enacted to provide legal recognition for electronic transactions, facilitate electronic data interchange (commonly known as “electronic commerce”), and promote the use of digital alternatives to paper-based methods of communication and information storage.²⁹ Its initial focus was on enabling e-governance and boosting the IT industry in India, rather than regulating online speech or intermediary liability in detail.³⁰ The Act defined key terms, including ‘intermediary’ under Section 2(1)(w), which broadly covers any entity that, on behalf of another person, receives, stores, or transmits electronic records or provides any service with respect to that record.³¹

Significant amendments were introduced to the IT Act in 2008 (effective 2009), which added crucial provisions impacting online speech and intermediary liability. These included Section 66A (punishing offensive online messages, later struck down), Section 69A (power to block online content), and a revised Section 79 (dealing with intermediary liability and safe harbour).³⁰

2.2 Power to Block Online Content: Section 69A and Procedural Safeguards

Section 69A of the IT Act empowers the Central Government to issue directions to block public access to any information transmitted through any computer resource.²¹ This power can be exercised if the government deems it “necessary or expedient” in the interests of:

• Sovereignty and integrity of India
• Defence of India
• Security of the State
• Friendly relations with foreign States
• Public order
• Preventing incitement to the commission of any cognizable offence relating to the above grounds.²¹

Notably, the inclusion of “defence of India” represents a ground not explicitly mentioned in Article 19(2), potentially broadening the scope for restriction compared to the constitutional limits.³⁴

The procedure for exercising this blocking power is detailed in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (Blocking Rules). These rules establish a process involving:

1. A request originating from a Nodal Officer.
2. Examination of the request by a Designated Officer.
3. Review by a committee comprising representatives from various ministries (Law, Home Affairs, Information & Broadcasting, and CERT-In).
4. An opportunity for the originator/intermediary to be heard (though often impractical).
5. Recommendation by the committee to the Secretary, Ministry of Electronics and Information Technology (MeitY).
6. Approval by the Secretary, MeitY.
7. Issuance of directions to the intermediary to block access.
8. A strict confidentiality requirement regarding all requests and actions taken.³⁶

The constitutional validity of Section 69A and the Blocking Rules was challenged but ultimately upheld by the Supreme Court in Shreya Singhal v. Union of India.¹⁵ The Court reasoned that, unlike the vague Section 66A, Section 69A was a narrowly drawn provision. Its grounds for blocking were found to be aligned with the reasonable restrictions under Article 19(2). Crucially, the Court noted the existence of procedural safeguards, such as the requirement for reasons to be recorded in writing (which could be challenged in court) and the committee review process.¹⁶ The Court explicitly acknowledged the confidentiality clause within the rules.¹⁶ However, this very confidentiality, while perhaps intended for security reasons, significantly hinders transparency. It makes it difficult for the public, researchers, and even affected content creators or platform users to ascertain the specific reasons behind blocking orders or to effectively challenge their legality or proportionality.²¹ This opacity contrasts with the principles of open justice and governmental accountability, creating an information asymmetry that favours the executive.

2.3 Intermediary Liability: The Evolution of Safe Harbour under Section 79

Section 79 of the IT Act embodies the ‘safe harbour’ principle, which generally grants intermediaries immunity from liability for third-party information, data, or communication links they host or make available.³¹ This protection is crucial for the functioning of online platforms that rely heavily on user-generated content.

The scope of this safe harbour was significantly amended in 2008 (effective 2009). The post-amendment Section 79(1) provides broad immunity, not limited to liability under the IT Act itself.³⁸ However, this immunity is conditional. Section 79(2) lays down the prerequisites for availing safe harbour:

• The intermediary’s function must be limited to providing access to a communication system over which third-party information is transmitted or stored.³⁸
• The intermediary must not initiate the transmission, select the receiver, or select or modify the information contained in the transmission.³⁸
• The intermediary must observe ‘due diligence’ while discharging its duties under the Act and follow guidelines prescribed by the Central Government.³⁸

Section 79(3) outlines circumstances where the safe harbour protection is lost:

• If the intermediary has conspired, abetted, aided, or induced the commission of an unlawful act.³⁸
• If, upon receiving ‘actual knowledge’ (or being notified by the appropriate government or its agency) that information, data, or a link residing on its resource is being used to commit an unlawful act, the intermediary fails to expeditiously remove or disable access to that material.³⁸

The interpretation of ‘due diligence’ and ‘actual knowledge’ has been central to the application of Section 79. Early cases like Avnish Bajaj v. State (NCT of Delhi) saw limited reliance on Section 79, partly due to the pre-amendment version’s narrower scope.³⁰ The landmark interpretation came in Shreya Singhal v. Union of India. The Supreme Court clarified that ‘actual knowledge’ under Section 79(3)(b) requires the intermediary to receive specific notification via a court order or a notice from the appropriate government or its agency.¹⁶ It does not mean mere awareness or general knowledge of potentially unlawful content. This interpretation significantly limited the obligation of intermediaries to proactively monitor content or make subjective judgments about its legality, placing the primary responsibility for identifying unlawful content on judicial or governmental authorities.¹⁶ This judicial clarification aimed to balance the need for intermediary immunity (preventing a chilling effect from the burden of pre-screening vast amounts of content) with the necessity of removing clearly identified illegal material.⁴¹ Some ambiguity remained, however, regarding the explicit protection for ‘hosting’ providers as distinct from mere ‘conduit’ providers, a distinction present in frameworks like the EU’s E-Commerce Directive.³⁹

2.4 The IT Rules, 2021: A New Regulatory Paradigm

In February 2021, the Ministry of Electronics and Information Technology (MeitY), in collaboration with the Ministry of Information and Broadcasting (MIB), notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.⁴² These Rules, framed under the rule-making powers granted by Sections 79(2), 69A, and 87 of the IT Act, superseded the previous Intermediary Guidelines Rules of 2011.⁴³ The stated objectives included addressing growing concerns about accountability, transparency, user safety, the spread of misinformation and fake news, and the misuse of social media platforms and OTT services.⁴³

The IT Rules 2021 introduced a significantly more elaborate and stringent regulatory framework, marking a departure from the previous regime.

2.4.1 Due Diligence Obligations and Content Moderation Mandates (Rule 3):

Rule 3(1) imposes expanded due diligence obligations on all intermediaries, including social media intermediaries (SMIs), significant social media intermediaries (SSMIs), and online gaming intermediaries.42 Key requirements include:

• Publication of Policies: Prominently publishing rules and regulations, privacy policy, and user agreement.⁴²
• Prohibited Content Notification: Informing users about categories of information they are prohibited from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating, or sharing. This list is extensive and includes content that is defamatory, obscene, pornographic, paedophilic, invasive of privacy (including bodily privacy), harmful to children, infringing intellectual property rights, violating any law, impersonating another person, threatening national unity or security, containing viruses, related to unverified online games, or identified as fake/false/misleading by a government fact-check unit regarding government business.⁴²
• Proactive Prevention: Intermediaries must make “reasonable efforts” to cause users not to host or share such prohibited information.⁴² This implies a more proactive role than merely reacting to takedown orders.
• Takedown Timelines: Upon receiving a court order or government notification regarding unlawful content (related to grounds like sovereignty, security, public order, etc.), intermediaries must remove or disable access expeditiously, generally within 36 hours.³ For certain sensitive content complained about by individuals (e.g., non-consensual intimate images, impersonation), the takedown timeline is stricter – 24 hours from complaint receipt.⁴²
• Information Preservation: Removed or disabled information and associated records must be preserved for 180 days for investigation purposes.⁴²
• Cooperation with Agencies: Intermediaries must provide information or assistance to authorized government agencies within 72 hours of receiving a written order for verification, investigation, or cyber security purposes.⁴²
• Respect for Constitutional Rights: A clause mandates intermediaries to respect users’ rights under the Constitution, including Articles 14, 19, and 21.⁴²

2.4.2 Grievance Redressal Frameworks:

The 2021 Rules establish more elaborate grievance redressal mechanisms:

• All Intermediaries (Rule 3(2)): Must appoint a Grievance Officer (contact details published), acknowledge complaints within 24 hours, and resolve them within 15 days (or 72 hours for certain content takedown complaints).⁴²
• Significant Social Media Intermediaries (SSMIs) (Rule 4): Defined as intermediaries with a user threshold above a notified limit (currently 5 million registered users in India).⁴⁰ SSMIs face additional, more stringent obligations:

• Appoint a Chief Compliance Officer (resident in India, responsible for compliance, potentially liable for failures).⁴²
• Appoint a Nodal Contact Person (resident in India) for 24×7 coordination with law enforcement.⁴²
• Appoint a Resident Grievance Officer (resident in India).⁴²
• Publish periodic (monthly) compliance reports detailing complaints received and actions taken.⁴²
• Deploy technology-based measures, including automated tools, on a best-effort basis, to proactively identify information depicting rape, child sexual abuse material, or previously removed unlawful content.⁴²
• Digital Media Publishers (Part III): Administered by the Ministry of Information and Broadcasting (MIB), Part III applies to publishers of news and current affairs content and publishers of online curated content (e.g., OTT platforms). It establishes a three-tier grievance redressal and self-regulatory structure ⁴²:

• Level I: Self-regulation by the publisher, requiring appointment of a Grievance Officer based in India and adherence to the Code of Ethics.
• Level II: Self-regulation by independent self-regulating bodies of publishers, headed by a retired judge or eminent person, overseeing Code adherence and handling appeals.
• Level III: An oversight mechanism by the Central Government, involving an Inter-Departmental Committee (IDC) constituted by the MIB, which can hear grievances and recommend action (including blocking) to the MIB.

2.4.3 Traceability and Encryption Concerns (Rule 4(2)):

A highly controversial provision, Rule 4(2), mandates that SSMIs primarily providing messaging services must enable the identification of the ‘first originator’ of information within India on their platform.40 This can only be ordered by a court or competent authority under Section 69 for specific serious offences (related to sovereignty, security, public order, rape, child sexual abuse material, etc.) and only if less intrusive means are ineffective.42 This requirement poses a direct challenge to platforms offering end-to-end encryption, as identifying the originator likely necessitates mechanisms that could compromise encryption and, consequently, user privacy and security.40 This has led to legal challenges from platforms like WhatsApp.44

2.4.4 Code of Ethics for Digital Media Publishers (Part III, Appendix):

The Appendix to the Rules lays out a Code of Ethics.42 Publishers of news and current affairs must adhere to the Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks (Regulation) Act, 1995.42 Publishers of online curated content (OTT platforms) must classify content into age-based categories (U, U/A 7+, U/A 13+, U/A 16+, A) based on themes like violence, nudity, sex, language, etc., prominently display these ratings, implement access controls (parental locks for U/A 13+ and above), and use reliable age verification for ‘A’ rated content.42

2.4.5 Comparative Analysis: 2011 Rules vs. 2021 Rules:

The IT Rules 2021 represent a significant departure from the 2011 Rules:

• Expanded Scope: The 2021 Rules explicitly bring digital news publishers and OTT platforms under regulation (Part III), which the 2011 Rules did not.⁴³
• Intermediary Categorization: The 2021 Rules introduce the classification of Social Media Intermediaries (SMIs) and Significant Social Media Intermediaries (SSMIs), imposing substantially higher compliance burdens on SSMIs.⁴⁰
• Proactive Obligations: While the 2011 Rules focused mainly on reactive takedown upon receiving ‘actual knowledge’, the 2021 Rules mandate more proactive measures, such as “reasonable efforts” to prevent users from posting prohibited content and deploying automated tools (for SSMIs).³⁹ This marks a shift towards making intermediaries more responsible for content policing.
• Stricter Timelines: Takedown timelines are significantly shorter and more specific in the 2021 Rules (e.g., 36 hours for general unlawful content, 24 hours for specific sensitive complaints) compared to the 2011 Rules.⁴²
• Mandatory Personnel: The 2021 Rules mandate the appointment of specific resident officers (Chief Compliance Officer, Nodal Contact Person, Resident Grievance Officer) for SSMIs, increasing operational costs and accountability.⁴²
• Traceability Mandate: The requirement to identify the ‘first originator’ on messaging platforms is entirely new in the 2021 Rules.⁴⁰
• Grievance Redressal: The 2021 Rules establish a much more elaborate, multi-tiered grievance redressal structure for both intermediaries and digital media publishers.⁴²

This regulatory shift towards greater proactivity and accountability for intermediaries, particularly SSMIs, arguably pushes the boundaries of ‘due diligence’ as envisaged under Section 79 and potentially diverges from the spirit of the Shreya Singhal interpretation, which emphasized limiting intermediary liability based on specific knowledge from authorities.³⁹ Furthermore, the attempt to regulate digital news and OTT publishers through rules framed under the IT Act raises questions about legislative competence, as the parent Act was not primarily designed for content regulation of publishers, leading to challenges arguing these rules are ultra vires.⁴⁵

Section 3: Key Issues and Constitutional Challenges

The intersection of Article 19’s free speech guarantee and the IT Act/Rules framework gives rise to several critical legal and constitutional issues.

3.1 The Balancing Act: Free Speech vs. State Regulation

At its core, the regulation of digital media involves navigating the inherent conflict between maximizing the constitutionally protected freedom of speech and expression and addressing the state’s legitimate interests in maintaining public order, national security, decency, morality, and preventing harms like defamation, hate speech, and misinformation.³ Achieving this balance requires careful consideration of constitutional principles.

The principle of proportionality, as emphasized in Anuradha Bhasin, is paramount.¹⁷ Any restriction imposed on online speech must be necessary to achieve a legitimate aim, be rationally connected to that aim, be the least intrusive measure available, and its impact must not be disproportionate to the objective sought.¹⁷ Questions arise whether the broad categories of prohibited content listed in Rule 3(1)(b) of the IT Rules 2021, encompassing terms like “defamatory,” “obscene,” “racially or ethnically objectionable,” or “misleading” ⁴², are sufficiently precise and narrowly tailored to meet this proportionality test. Similarly, the traceability mandate ⁴⁰, which impacts privacy and potentially chills communication, faces scrutiny under this principle.

Furthermore, echoing the reasoning that led to the striking down of Section 66A in Shreya Singhal ¹³, regulations employing vague and undefined terms risk being deemed unconstitutional under Articles 14 (equality/non-arbitrariness) and 19(1)(a). Terms like “decency,” “morality,” or the scope of “any business of the Central Government” (in the context of the Fact Check Unit amendment) ⁵⁰ lack clear definition, potentially leading to arbitrary application by authorities and intermediaries, and failing the constitutional test of clarity required for laws restricting fundamental rights.⁵²

3.2 Intermediary Liability vs. Freedom from Censorship

The IT Rules 2021 significantly heighten the obligations on intermediaries, linking compliance directly to the availability of safe harbour protection under Section 79.³⁹ This linkage effectively transforms Section 79 from primarily a shield protecting intermediaries into a regulatory tool compelling platform behaviour aligned with government objectives. The fear of losing immunity from potentially crippling lawsuits for user-generated content creates a strong incentive for intermediaries, especially large platforms (SSMIs), to err on the side of caution.³⁹ This can lead to proactive monitoring and over-zealous removal of content that might be borderline or even legally permissible, effectively resulting in private censorship driven by risk aversion rather than direct government orders in every instance.³⁹

Moreover, requiring intermediaries to make “reasonable efforts” to prevent prohibited content ⁴² or assess complaints based on broad categories potentially forces them into an adjudicatory role.⁵⁵ Determining whether content is “defamatory,” “misleading,” or harmful often involves complex legal and factual assessments traditionally reserved for judicial bodies. Burdening private platforms with this quasi-judicial function is problematic, as they may lack the capacity, neutrality, and procedural safeguards for fair adjudication.⁵⁵ The rules also impose differential burdens, with SSMIs facing significantly more onerous compliance requirements (personnel, traceability, automated filtering) than smaller platforms or specialized intermediaries like Free and Open Source Software (FOSS) communities, raising questions of fairness and impact on diverse online ecosystems.⁵⁵

3.3 The ‘Chilling Effect’ on Online Speech

A significant concern arising from the regulatory framework is the potential for a ‘chilling effect’ on freedom of expression.³ This occurs when individuals or platforms self-censor, avoiding potentially controversial or critical speech due to fear of legal sanctions, platform takedowns, or government surveillance, even if the speech itself is lawful.⁵⁶

Several elements within the IT Act and Rules 2021 contribute to this risk:

• Vague Prohibitions: Ambiguous terms in content rules (Rule 3(1)(b)) create uncertainty about what is permissible, leading users and platforms to self-censor borderline content.⁵⁶
• Strict Takedown Mandates: Short timelines for content removal and the threat of losing safe harbour pressure intermediaries towards quick removal, potentially without adequate review.³
• Traceability Requirement: The mandate to identify message originators ⁴² undermines anonymity and privacy, potentially deterring whistleblowers, activists, journalists, and ordinary citizens from engaging in sensitive or critical discussions, especially on encrypted platforms.⁵⁵
• Government Fact-Checking: The proposed (currently stayed) government Fact Check Unit ⁵⁸, empowered to flag information about the government itself, poses a direct threat to political critique and investigative journalism, creating a strong incentive to avoid reporting or commentary that might attract negative attention from the FCU.⁵⁸

The cumulative impact of these factors risks stifling dissent and critical discourse online, which are essential for a healthy democracy.⁴ The traceability mandate, in particular, directly conflicts with the right to privacy affirmed in K.S. Puttaswamy v. Union of India ⁴⁴ and could disproportionately affect those relying on secure communication channels for legitimate, sensitive work.

Section 4: Judicial Scrutiny and Landmark Precedents

The Indian judiciary has played a pivotal role in shaping the legal landscape of online free speech and regulation, interpreting constitutional guarantees and scrutinizing legislative and executive actions.

4.1 Mapping Judicial Trends in Online Free Speech Regulation

Judicial trends reveal an evolving approach. Early on, courts actively expanded the scope of Article 19(1)(a) to encompass new media forms as they emerged.¹² Following the enactment of the IT Act and its amendments, the judiciary demonstrated a willingness to rigorously test provisions restricting online speech against constitutional benchmarks. The landmark decision in Shreya Singhal striking down Section 66A exemplifies this, where the Court invalidated a statutory provision for being vague and disproportionate, setting a high bar for restrictions on online expression.⁶

More recently, there has been a marked emphasis on procedural fairness and the application of the proportionality test, particularly in the context of drastic measures like internet shutdowns, as seen in Anuradha Bhasin.¹⁷ The judiciary continues to grapple with the complexities introduced by the IT Rules 2021 and the challenges posed by new technologies, with numerous challenges pending and evolving jurisprudence.⁴⁵

4.2 Analysis of Landmark Judgments:

Several key judgments have significantly influenced the law in this area:

• Shreya Singhal v. Union of India (2015) ³:

• Facts: The case arose from the arrest of two women under Section 66A of the IT Act for Facebook posts criticizing a political shutdown.¹⁴ The constitutional validity of Section 66A, Section 69A, and Section 79 of the IT Act was challenged.
• Key Issues: Whether Section 66A violated Article 19(1)(a) due to vagueness and overbreadth; whether its restrictions fell within Article 19(2); the constitutionality of Section 69A and its procedures; and the interpretation of ‘actual knowledge’ for intermediary liability under Section 79.
• Findings/Principles: The Supreme Court, comprising Justices Chelameswar and Nariman ¹⁶, struck down Section 66A in its entirety as unconstitutional.¹⁵ The Court found the provision fatally vague (using undefined terms like “grossly offensive,” “annoyance,” “inconvenience”) and overbroad, capable of penalizing vast amounts of protected and innocent speech.¹⁵ It drew a crucial distinction between mere advocacy or discussion and incitement, holding that restrictions under Article 19(2) must be proximately related to incitement leading to public disorder or other specified grounds, not just annoyance or offense.¹⁵ In contrast, Section 69A and the Blocking Rules were upheld because the grounds were deemed relatable to Article 19(2), and the provision included procedural safeguards like written reasons and committee review.¹⁵ The Court also interpreted ‘actual knowledge’ under Section 79(3)(b) to mean receiving notice through a court order or government notification, thereby limiting intermediaries’ obligation to proactively monitor content.¹⁶
• Significance: This judgment was a seminal victory for online freedom of expression in India. It imported doctrines of vagueness and overbreadth firmly into the analysis of online regulations and set a high standard for justifying restrictions, requiring a clear link to incitement or specific harms listed in Article 19(2). It also provided crucial clarity on the trigger for intermediary liability.
• Anuradha Bhasin v. Union of India (2020) ³:

• Facts: The case challenged the indefinite suspension of internet services and imposition of movement restrictions in Jammu & Kashmir following the abrogation of Article 370.¹⁷ The petitioner, an editor, argued the shutdown crippled the media’s ability to function.¹⁸
• Key Issues: Whether access to the internet is fundamental; the legality of indefinite internet shutdowns; the applicability of the proportionality test to such restrictions; the requirement for transparency and publication of restriction orders.
• Findings/Principles: The Supreme Court (Justices Ramana, Reddy, Gavai ²⁰) declared that the freedom of speech and expression under Article 19(1)(a) and the freedom to practice any profession or carry on any trade, business or occupation under Article 19(1)(g) through the medium of the internet are constitutionally protected.¹⁷ While not declaring internet access itself a separate fundamental right, the Court held it to be an essential medium for exercising these rights.¹⁷ Consequently, any restriction on internet access must meet the requirements of Article 19(2) and 19(6), particularly the test of proportionality.¹⁷ The Court ruled that indefinite suspension of internet services is impermissible; shutdowns must be temporary, limited in duration, necessary, and subject to periodic review.¹⁷ It strongly emphasized the principle of proportionality, requiring restrictions to be the least intrusive measure.¹⁷ Furthermore, the Court mandated that orders imposing such restrictions must be made public to ensure transparency and enable affected parties to seek remedies.¹⁷
• Significance: This judgment significantly elevated the constitutional status of internet access by linking it directly to fundamental rights. It established crucial procedural and substantive safeguards against arbitrary internet shutdowns, demanding justification based on necessity, proportionality, and transparency.
• Kunal Kamra v. Union of India (Challenge to IT Rules 2023 Amendment / Fact Check Unit – FCU) ⁵²:

• Facts: Multiple petitioners, including comedian Kunal Kamra and media organizations, challenged the 2023 amendment to Rule 3(1)(b)(v) of the IT Rules 2021.⁵⁸ This amendment empowered a government-established Fact Check Unit (FCU) to identify “fake or false or misleading” online information related to “any business of the Central Government”.⁵² Intermediaries notified of such flagged content would have to remove it or risk losing their safe harbour protection under Section 79.⁵⁸
• Key Issues: Whether the amendment violates Article 19(1)(a) (chilling effect on speech, especially political satire and critique), Article 14 (arbitrariness, government acting as judge in its own cause), Article 19(1)(g) (right to profession); whether the term “any business of the Central Government” is vague; whether the rule is ultra vires the IT Act; and the lack of procedural safeguards and appeal mechanisms against FCU decisions.⁵⁸
• Status/Findings: The Bombay High Court delivered a split verdict (Justice Patel finding it unconstitutional, Justice Gokhale upholding it with safeguards).⁵² The third referral judge, Justice Chandurkar, concurred with Justice Patel, striking down the amendment as violative of Articles 14, 19(1)(a), and 19(1)(g), ultra vires the IT Act, vague, disproportionate, lacking safeguards, and violating principles of natural justice (government judging its own cause).⁵⁸ Subsequently, MeitY notified the FCU on March 20, 2024.⁶⁴ However, the Supreme Court, on appeal by Kamra and others, stayed this notification on March 21, 2024, pending the final disposal by the High Court, explicitly noting the “serious constitutional questions” involved regarding free speech.⁵²
• Significance: This ongoing litigation directly confronts the government’s power to regulate online information concerning its own activities. The core issue of the government potentially acting as “judge in its own cause” ⁵⁷ raises fundamental concerns about censorship, separation of powers, and the viability of independent journalism and critique in the digital sphere. The Supreme Court’s stay, particularly ahead of general elections, underscores the constitutional gravity of the issues raised.⁵²

Table 1: Landmark Judgments on Digital Free Speech & IT Act

Case Name & Citation	Key Issues Addressed	Core Findings/Principles Established	Relevant Legal Provisions
Shreya Singhal v. Union of India (2015) 5 SCC 1	Validity of IT Act Sec 66A, 69A, 79; Vagueness & Overbreadth; Scope of Art 19(2); Intermediary Liability (‘Actual Knowledge’)	Sec 66A unconstitutional (vague, overbroad, violates Art 19(1)(a)). Distinction between advocacy & incitement; restrictions need proximate link to Art 19(2) grounds. Sec 69A constitutional (narrower grounds, procedural safeguards). Sec 79 ‘actual knowledge’ requires court/govt order.	Art 19(1)(a), 19(2); IT Act Sec 66A, 69A, 79
Anuradha Bhasin v. Union of India (2020) 3 SCC 637	Internet access & fundamental rights; Legality of indefinite internet shutdowns; Proportionality test for restrictions; Transparency (publication of orders)	Freedom of speech (19(1)(a)) & trade (19(1)(g)) via internet protected. Internet is an essential medium. Indefinite shutdowns impermissible. Restrictions must be necessary, proportionate (least intrusive, temporary), & reviewed. Orders must be published.	Art 19(1)(a), 19(1)(g), 19(2), 19(6); Telegraph Act; CrPC Sec 144
Kunal Kamra v. Union of India (Challenge to IT Rules 2023 Amendment/FCU) – Ongoing	Validity of Rule 3(1)(b)(v) amendment; Govt Fact Check Unit (FCU); Art 19(1)(a) (chilling effect), Art 14 (arbitrariness, judge in own cause); Vagueness; Ultra Vires IT Act	Bombay HC (final): Rule unconstitutional (violates Art 14, 19(1)(a), 19(1)(g), ultra vires IT Act, vague, disproportionate). Supreme Court: Stayed govt notification establishing FCU, citing serious constitutional questions.	Art 14, 19(1)(a), 19(1)(g); IT Act Sec 79; IT Rules 2021 Rule 3(1)(b)(v) (as amended 2023)

Section 5: The Current Legal Landscape and Ongoing Disputes

5.1 Synthesis of the Prevailing Legal Position

The current legal framework governing digital media and free speech in India is characterized by a complex interplay of constitutional principles, statutory provisions, and evolving rules, significantly shaped by judicial interpretation but marked by ongoing contention.

• Constitutional Foundation: The right to freedom of speech and expression under Article 19(1)(a) robustly applies to the online environment. However, this right is subject to ‘reasonable restrictions’ under Article 19(2), which the judiciary has mandated must be imposed by law, be necessary, proportionate, clearly defined, non-vague, and directly linked to the enumerated grounds (Shreya Singhal, Anuradha Bhasin). Access to the internet is judicially recognized as an essential enabler for exercising fundamental rights under Article 19(1)(a) and 19(1)(g).
• Statutory Control: The IT Act, 2000, particularly Section 69A (content blocking) and Section 79 (intermediary liability/safe harbour), provides the primary statutory tools for regulation. Section 69A allows government blocking orders under specific grounds with procedural safeguards (though operating confidentially). Section 79 grants conditional immunity to intermediaries, contingent on observing ‘due diligence’ as defined by the government, with liability triggered upon failure to act on ‘actual knowledge’ (interpreted by courts as specific court/government orders).
• Regulatory Regime (IT Rules 2021): The IT Rules 2021 impose extensive due diligence obligations on intermediaries. These include proactive measures to prevent certain types of content, stringent takedown timelines, comprehensive grievance redressal mechanisms, and cooperation mandates with law enforcement. Significant Social Media Intermediaries (SSMIs) face heightened requirements, including appointing specific compliance personnel and enabling traceability for messaging services.
• Digital Media Oversight: Publishers of digital news and Over-The-Top (OTT) platforms are subject to a Code of Ethics and a three-tier oversight mechanism under Part III of the IT Rules 2021, although the legal validity of this specific part remains under challenge.
• State of Flux: Key components of this framework, especially the IT Rules 2021 and the practical application of blocking powers, are currently subject to significant legal challenges and judicial review, leading to considerable uncertainty.

5.2 Status of Legal Challenges to the IT Rules, 2021

The notification of the IT Rules 2021 triggered widespread concern and prompted numerous legal challenges across India.⁴⁴ Petitions were filed in various High Courts, including Delhi, Bombay, Madras, Kerala, Karnataka, and Calcutta, by a diverse range of stakeholders:

• Digital News Publishers: Organizations like The Wire (Foundation for Independent Journalism), The Quint, LiveLaw, and associations like the Digital News Publishers Association challenged Part III of the Rules, arguing it imposes an onerous Code of Ethics and an unconstitutional government oversight mechanism that curtails press freedom.⁴⁴
• Intermediaries: Major platforms like WhatsApp and Facebook (Meta) challenged provisions impacting their operations, particularly the traceability mandate (Rule 4(2)) which they argue undermines end-to-end encryption and user privacy.⁴⁴
• Users and Civil Society: Individuals like Kunal Kamra, FOSS communities, and organizations like the Internet Freedom Foundation challenged various aspects of the Rules (including Part II concerning intermediary diligence and the FCU amendment) on grounds of violating fundamental rights.⁵³

The primary grounds for these challenges include ⁴⁴:

• Violation of Fundamental Rights: Infringement of freedom of speech and expression (Article 19(1)(a)), right to privacy (Article 21, particularly concerning encryption and traceability), right to equality/non-arbitrariness (Article 14), and right to practice profession/trade (Article 19(1)(g)).
• Vagueness and Overbreadth: Use of ambiguous terms leading to uncertainty and potential for arbitrary enforcement.
• Chilling Effect: Creation of an environment where users and platforms self-censor due to fear of liability or takedown.
• Ultra Vires the IT Act: Arguments that the Rules, particularly Part III regulating publishers and certain proactive obligations, exceed the rule-making authority delegated by the parent IT Act.
• Undermining Encryption: Specific challenge to the traceability mandate’s impact on secure communication.
• Unreasonable Compliance Burden: Especially on smaller platforms or non-profit entities.

Several High Courts had initially granted interim relief, particularly staying the operation of parts of Rule 9 (Code of Ethics and grievance mechanism for publishers) under Part III.⁴⁵ Recognizing the multiplicity of petitions and the risk of divergent judgments, the Supreme Court, acting on a transfer petition filed by the Union Government, consolidated all challenges pending across various High Courts and transferred them to the Delhi High Court in March 2024.⁵³ Prior to this, in May 2022, the Supreme Court had stayed further proceedings in the High Courts on these challenges.⁶⁹

As of now, the consolidated batch of petitions challenging the IT Rules 2021 is pending adjudication before the Delhi High Court.⁵³ No final verdict has been rendered on the overall constitutionality and validity of the Rules. The outcome of this consolidated hearing will be immensely consequential for the future of digital regulation in India. The legal landscape remains unsettled, with key rules facing fundamental constitutional questions, creating uncertainty for all stakeholders in the digital ecosystem.

5.3 Emerging Conflicts: Section 79(3)(b) vs. Section 69A Blocking Orders

A recent and significant area of conflict involves the government’s alleged use of Section 79(3)(b) of the IT Act as a mechanism for ordering the blocking or takedown of online content, potentially bypassing the more specific and procedurally safeguarded route provided under Section 69A.³⁵

This issue has been brought to the forefront by litigation initiated by X Corp (formerly Twitter) in the Karnataka High Court.⁶⁰ X Corp argues that various government ministries, state agencies, and even local police forces are issuing blocking orders citing Section 79(3)(b), often through a dedicated online portal named “Sahyog” managed by the Ministry of Home Affairs’ Indian Cyber Crime Coordination Centre (I4C).³⁷

The core of X Corp’s argument is ³⁴:

• Section 69A is the specific provision enacted by Parliament to grant the government the power to block online content on grounds related to national security, public order, etc. Its constitutionality was upheld in Shreya Singhal precisely because it was narrowly defined and contained procedural safeguards (like committee review, written reasons, albeit confidential).
• Section 79(3)(b), on the other hand, deals with the conditions under which an intermediary loses its safe harbour immunity – specifically, failing to act upon ‘actual knowledge’ (interpreted by Shreya Singhal as a court order or government notification under relevant laws) that hosted material is being used for an ‘unlawful act’. It was intended as a condition for immunity, not an independent source of broad blocking power for the government.
• Using Section 79(3)(b) to order takedowns for any broadly defined ‘unlawful act’ allows the government to circumvent the specific grounds and procedural requirements (committee review, etc.) mandated under Section 69A and the Blocking Rules. This creates a parallel, less transparent, and potentially much broader censorship regime that violates the structure of the IT Act and the principles laid down in Shreya Singhal.

X Corp alleges that MeitY has encouraged this practice and provided templates, effectively empowering numerous agencies to issue blocking orders outside the Section 69A framework.⁶⁰ This, they argue, constitutes a “colourable exercise of power” and renders the safeguards of Section 69A meaningless.⁶⁰

The government’s reported stance is that the use of Section 79(3)(b) complements the Section 69A process and is necessary to ensure intermediary compliance with their obligations regarding unlawful content.⁷¹

This case is currently pending before the Karnataka High Court. While the court declined to grant an immediate interim stay against potential coercive action for non-compliance (e.g., not joining the Sahyog portal), it permitted X Corp to approach the court if such action is taken.³⁵ This dispute highlights a critical potential shift in how content blocking powers are being exercised, potentially expanding executive authority and reducing procedural checks, thereby undermining the balance carefully constructed by the Supreme Court in Shreya Singhal.

Section 6: Future Directions: Technology, Legislation, and Rights

The regulatory landscape for digital media in India is poised for further evolution, driven by rapid technological advancements, perceived inadequacies in existing laws, and ongoing debates about balancing fundamental rights with regulatory needs.

6.1 Regulating Emerging Technologies: AI, Deepfakes, and Misinformation

The rise of Artificial Intelligence (AI), particularly generative AI, has introduced new complexities and challenges for regulators worldwide, including India. Concerns center on the potential misuse of AI for creating sophisticated deepfakes, spreading targeted misinformation and disinformation, perpetuating algorithmic bias leading to discrimination, and impacting electoral integrity and individual privacy.³¹

India’s current approach appears reactive and relies heavily on extending existing frameworks. MeitY has issued advisories (in December 2023 and March 2024) under the IT Act and Rules 2021, directing intermediaries and platforms using AI ⁷⁴:

• To ensure their AI tools do not permit users to host unlawful content (as defined in Rule 3(1)(b)) and do not perpetuate bias or discrimination or threaten electoral integrity.
• To label or embed permanent unique metadata in synthetically generated content (including deepfakes) that could potentially be used for misinformation, allowing identification of its AI origin or modification.
• To clearly inform users about platform rules regarding unlawful content and the consequences of violations, including potential legal action under the IPC and IT Act.

An initial advisory in March 2024 controversially mandated explicit government permission for deploying “under-testing / unreliable” AI models on the Indian internet.⁷³ This requirement faced sharp criticism and was subsequently withdrawn or clarified to apply only to major platforms, before being removed entirely in a revised advisory, indicating policy uncertainty and potential internal disagreements within the government.⁷³ This reliance on advisories under existing rules highlights the limitations of the current IT Act in addressing the nuances of AI governance, suggesting a need for a more robust legal framework.⁷³

The broader debate on AI regulation in India reflects differing perspectives: a “pro-innovation” stance favoring minimal regulation to foster growth versus calls for “proactive regulatory intervention” to mitigate risks.⁷³ Industry stakeholders generally prefer self-regulation and guidelines (“Level 1”) supplemented by targeted rules for high-risk applications (“Level 2”), fearing that strict legislation could stifle innovation and hinder India’s AI ambitions.⁷³ MeitY itself is reportedly considering options, including amending the IT Act or incorporating AI regulation into the proposed Digital India Act.⁷³

6.2 The Proposed Digital India Act (DIA): Anticipated Changes and Implications

Recognizing the limitations of the IT Act, 2000 – enacted before the widespread adoption of smartphones, social media, AI, IoT, and the complexities of the modern internet – the Indian government has signaled its intention to introduce a new, comprehensive legislative framework, tentatively titled the Digital India Act (DIA).⁵ The rationale is to create a modern law capable of addressing contemporary challenges and technologies.⁵

Based on ministerial statements and consultation papers, the proposed DIA is expected to encompass several key features ⁵:

• Modernized Framework: Aiming for a comprehensive law built on principles of open internet, online safety, trust, accountability, and quality of service, designed to be adaptable through evolving rules.⁵ It would complement the recently enacted Digital Personal Data Protection Act, 2023.⁵
• Regulation of New Technologies: Explicitly addressing and potentially regulating emerging technologies like AI (especially high-risk systems), blockchain, IoT, Metaverse, and quantum computing.⁵
• Reclassification of Intermediaries: Moving beyond the current broad definition to categorize intermediaries based on their function and risk profile (e.g., social media platforms, e-commerce sites, digital media publishers, OTT services, AI platforms, cloud service providers, ISPs, online gaming platforms). This could lead to differentiated obligations for each category.⁵
• Review of Safe Harbour (Section 79): A critical aspect under consideration is the potential modification or even removal of the broad safe harbour immunity currently enjoyed by intermediaries under Section 79.⁵ This could significantly increase platform accountability for third-party content, potentially mandating stricter content moderation and fact-checking to prevent misinformation and unlawful content.⁷²
• Addressing Online Harms: Introducing specific provisions to define and penalize newer forms of online harm, such as doxing, cyberstalking, cyberbullying, revenge porn, catfishing, and the deliberate spread of disinformation (“fake news”).⁵
• Strengthened User Rights: Potentially enshrining specific digital user rights, such as the right to be forgotten, right to secure electronic means, right to redressal, right against algorithmic discrimination, and possibly rights related to digital inheritance.⁷²
• Child Safety Measures: Incorporating provisions for age-gating, regulating addictive technologies targeting minors, and enhancing protection of children’s data.⁷²
• Enforcement and Penalties: Establishing new penalty structures for violations and potentially creating dedicated adjudicatory mechanisms for online civil and criminal offenses.⁷²

The potential implications of the DIA are profound. While aiming to create a safer and more accountable digital environment, key proposals, especially the potential weakening of safe harbour, raise significant concerns.⁵ A drastic shift in intermediary liability could fundamentally alter the nature of online platforms in India, likely leading to more restrictive content policies and potentially chilling user expression to mitigate legal risks.⁵ The challenge lies in drafting provisions that effectively address harms without being overly broad or vague (avoiding the pitfalls of Section 66A) and ensuring that regulatory powers are subject to robust procedural safeguards, transparency, and independent oversight to prevent government overreach.⁵ The process of drafting and consultation will be crucial, learning from criticisms regarding the passage of the DPDP Act.⁸¹

6.3 Navigating the Future: Recommendations for a Balanced Approach

As India moves towards potentially overhauling its digital regulatory framework, achieving a balance that protects fundamental rights while addressing genuine online harms is critical. Several principles should guide future legislative and regulatory efforts:

• Constitutional Supremacy: All digital regulations, whether amendments to the IT Act or the new DIA, must be firmly anchored in the Constitution. Restrictions on Article 19(1)(a) must strictly adhere to the grounds in Article 19(2) and satisfy the judicially mandated tests of necessity, proportionality, and reasonableness. Procedural fairness and due process must be integral.
• Clarity and Precision: Learning from the Shreya Singhal precedent, legislative language must be clear, precise, and unambiguous. Vague terms that allow for arbitrary interpretation and enforcement should be avoided to prevent chilling effects and ensure legal certainty.
• Proportionality and Risk-Based Regulation: A nuanced, risk-based approach to intermediary regulation is preferable to a one-size-fits-all model.⁷² Obligations should be proportionate to the intermediary’s size, function, technical capabilities, and the specific risks associated with its services. High-risk applications (like certain AI systems or large platforms with viral potential) may warrant stricter oversight than low-risk services.
• Meaningful Safe Harbour: While accountability is important, dismantling safe harbour protections entirely could severely damage the open internet ecosystem.⁵ Retaining meaningful immunity for intermediaries against liability for user-generated content, particularly where they act expeditiously on lawful orders, is crucial to foster innovation and avoid incentivizing preemptive censorship. Accountability mechanisms should target specific failures rather than imposing general liability.
• Transparency and Accountability: Mechanisms for content moderation, blocking orders, and surveillance must incorporate transparency. The confidentiality surrounding Section 69A orders is problematic.²¹ Independent oversight bodies (with judicial involvement) and effective judicial review are essential checks on executive power.
• Multi-stakeholder Engagement: Continued and meaningful consultation with diverse stakeholders – including civil society organizations, digital rights groups, industry representatives (large and small), technical experts, academia, and legal professionals – is vital for developing effective, balanced, and legitimate digital governance frameworks.¹

Conclusion

The regulation of digital and social media in India stands at a critical juncture, defined by the complex and evolving interplay between the constitutional guarantee of freedom of speech and expression under Article 19 and the statutory framework embodied in the Information Technology Act, 2000, and particularly the IT Rules, 2021. The core tension persists: how to balance the exercise of fundamental rights in the expansive digital realm with the state’s legitimate interests in ensuring security, public order, and preventing online harms like misinformation and hate speech.

The judiciary has played a vital role in mediating this tension. Landmark rulings like Shreya Singhal v. Union of India and Anuradha Bhasin v. Union of India have established crucial benchmarks, affirming the application of Article 19(1)(a) online, striking down vague and overbroad restrictions, demanding proportionality and necessity for measures like internet shutdowns, and interpreting intermediary liability provisions through a constitutional lens. These judgments emphasize procedural safeguards and judicial oversight as essential checks on executive power in the digital domain.

However, the current legal landscape remains fraught with uncertainty and contention. The IT Rules 2021, with their expanded due diligence obligations, stringent takedown timelines, traceability mandates, and regulation of digital media publishers, face significant constitutional challenges consolidated before the Delhi High Court. The government’s attempt to establish a Fact Check Unit under these rules has been stayed by the Supreme Court, highlighting serious free speech concerns. Furthermore, emerging disputes over the use of Section 79(3)(b) for content blocking suggest potential attempts to circumvent the established procedures under Section 69A, further unsettling the regulatory balance.

Looking ahead, the rapid evolution of technologies like AI presents new regulatory dilemmas concerning deepfakes, algorithmic bias, and misinformation, which the current IT Act struggles to address adequately. The proposed Digital India Act offers an opportunity for comprehensive reform but also carries risks, particularly regarding the potential weakening of intermediary safe harbour protections, which could fundamentally reshape online expression and platform liability in India.

Ultimately, navigating the future of digital regulation requires a steadfast commitment to constitutional principles. Any legislative or regulatory measures must prioritize clarity, necessity, and proportionality. Restrictions on free speech must be narrowly tailored, procedurally fair, and subject to transparent oversight and effective judicial review. Fostering an open, safe, and rights-respecting digital environment necessitates a balanced approach that addresses genuine harms without unduly stifling the freedom of speech and expression – a freedom indispensable to India’s democratic fabric in the digital age. Meaningful multi-stakeholder consultation will be essential in crafting laws and policies that achieve this delicate equilibrium.

Bibliography/References

Statutes and Rules:

• Constitution of India.
• Information Technology Act, 2000 (Act 21 of 2000).
• Information Technology (Amendment) Act, 2008.
• Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
• Information Technology (Intermediaries Guidelines) Rules, 2011 (Superseded).
• Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended up to April 6, 2023).⁴²
• Indian Penal Code, 1860.
• Code of Criminal Procedure, 1973.
• Press Council Act, 1978.
• Cable Television Networks (Regulation) Act, 1995.

Case Law:

• Abbas v. Union of India (1970) ¹²
• Aneeta Hada v Godfather Travels & Tours Ltd (2012) ³⁰
• Anuradha Bhasin v. Union of India (2020) 3 SCC 637 ³
• Avnish Bajaj v. State (NCT of Delhi) (2008) ³⁰
• Bangalore Medical Trust v. B.S. Muddappa (1991) ²⁴
• Baragur Ramachandrappa v. State of Karnataka ²⁶
• Bennett Coleman and Co. v. Union of India (1972) ¹²
• Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 ¹⁰
• Brij Bhushan v. State of Delhi (1950) ⁸
• Express Newspapers (Private) Ltd. v. The Union of India (1958) ²⁷
• Indian Express v. Union of India (1985) 1 SCC 641 ¹²
• K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 ⁴⁴
• Kaushal Kishore v. State of Uttar Pradesh (2023) 4 SCC 1 ⁶²
• Kedar Nath Singh v. State of Bihar AIR 1962 SC 955 ²⁶
• Kunal Kamra v. Union of India Writ Petition (L) No. 9792 of 2023 (Bombay High Court) ⁵² (Status includes subsequent SC stay)
• Madhu Limaye v. SDM, Monghyr (1970) 3 SCC 746 ²⁶
• Maneka Gandhi v. Union of India (1978) 1 SCC 248 ¹²
• Myspace Inc. v. Super Cassettes Industries Ltd (2017) 236 DLT 478 ³⁰
• Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana (1988) 3 SCC 410 ¹⁹
• R. Rajagopal v. State of Tamil Nadu (1994) ²⁷
• Ram Jethmalani v. Union of India (2011) 8 SCC 1 ¹⁸
• Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740 ²⁶
• Ramji Lal Modi v. State of U.P. AIR 1957 SC 620 ²⁶
• Ramila Maidan Incident, In re (2012) 5 SCC 1 ²⁷
• Romesh Thappar v. State of Madras AIR 1950 SC 124 ⁸
• S. Khushboo v. Kanniamal (2010) ¹⁴
• S. Rangarajan v. P. Jagjivan Ram (1989) 2 SCC 574 ²⁶
• Sakal Papers v. Union of India (1962) ¹⁴
• Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal (1995) 2 SCC 161 ²¹
• Sharat Babu Digumarti v. Govt (NCT of Delhi) (2017) 2 SCC 18 ³⁰
• Shreya Singhal v. Union of India (2015) 5 SCC 1 ³
• Union of India v. Assn. for Democratic Reforms (2002) 5 SCC 294 ¹²

Government Reports, Advisories, and Websites:

• Ministry of Electronics and Information Technology (MeitY) Advisories on AI/Deepfakes (Dec 2023, March 2024) ⁷⁴
• MeitY Policy Documents ⁸²
• MeitY Website (IT Act Rules) ⁸³
• PIB Press Releases ⁶⁶
• ConstitutionofIndia.net ⁹
• India Code (indiacode.nic.in) ²⁹
• IndianKanoon.org ⁸
• Delhi High Court Website (Cause Lists/Circulars) ⁸⁴

Academic Articles, Reports, and Legal Blogs:

• ALG India Law Offices LLP Blog ⁴³
• Bar and Bench ⁶⁰
• Carnegie Endowment for International Peace ⁷³
• Centre for Communication Governance (CCG), NLU Delhi Report ³⁹
• CIS-India Publications ²¹
• Columbia Global Freedom of Expression Case Database ¹⁵
• Cyril Amarchand Mangaldas Blog ⁵⁷
• DataGuidance ⁷⁸
• Dhyeya Law ⁵⁶
• Drishti Judiciary ¹²
• Economic Times / ET Government / ET Tech ³⁷
• FPF.org Blog ⁵⁴
• Goforthelaw.com ²⁵
• Hindustan Times ⁶¹
• IMPRI Policy Update ⁴⁹
• Indian Constitutional Law and Philosophy Blog (IndConLawPhil) ⁵¹
• Indian Express ⁶⁰
• Indian Journal of Law and Technology (IJLT) ²²
• Indian Journal of Law and Society (IJLS) ¹
• Indian Journal of Research and Public Policy (IJRPR) ⁶
• Internet Society Issue Brief ⁴⁰
• IPPR Journal Article ³²
• IPleaders Blog ²⁴
• Journal of Law and Rights (JLRJS) ²⁸
• Journals Alliance Publications (IJLS) ¹
• Lakshmi Kumaran & Sridharan Attorneys Blog ⁸⁰
• Law and World Journal ²
• LawBhoomi ¹⁷
• Lawful Legal Blog ³
• Law Journals (Mohd. Owais Farooqui article) ¹⁴
• LiveLaw ⁶⁶
• Managing IP ⁴⁸
• Manupatra Articles ⁴¹
• MCRHRDI Course Material ¹¹
• National Law Review ⁴⁵
• NDTV ⁵⁹
• NextIAS Current Affairs ³³
• PWOnlyIAS Editorial Analysis ³⁵
• PRSIndia Legislative Research ⁴⁶
• ResearchGate (Tushar Sharma article) ²³
• SCC Online Blog ⁷⁶
• SFLC.in (Software Freedom Law Centre, India) ³⁶
• SNR Law Insights ³¹
• Supreme Court Observer (SCObserver) ²⁷
• Taylor & Francis Online (TandFOnline) Journals ⁴
• Tech Policy Press ⁸¹
• The Amikus Qriae ²⁰
• The Legal Affair ⁷⁰
• The Scroll ²¹
• TSCLD Law Blog ¹³
• UpGuard Blog ⁷⁹
• Vidhi Centre for Legal Policy Blog ⁵
• Wikipedia ¹⁶

Other Sources:

• AP News.⁹¹⁹¹

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