Journalism and Digital Media: Misinformation, Content Regulation, and Censorship Under IT Rules in India

India’s digital media landscape is currently characterized by a highly visible tension between the state’s responsibility to combat disinformation and the constitutional right to freedom of the press. The Information Technology Rules (Interim Guidelines and Digital Media Ethics Code), 2021 are emblematic of this battle, creating a constitutional crisis of editorial freedom and online speech [1]. While governments have presented these restrictions as important safeguards against the weaponization of digital platforms, judges and civil society expect these restrictions to lead to systematic abuse and endanger the fourth pillar of democracy.

Digital regulation has a legal basis under Section 69A of the Information Technology Act, 2000, which empowers governments to block content based on national sovereignty, security, and maintenance of law and order [2]. However, the 2021 regulations significantly expand this scope through three key mechanisms:

• Platform classification: introduction of large social media intermediaries subject to more stringent due diligence requirements.
• Three-tier redress system: Online content and OTT platforms must comply with a grievance redress mechanism, after which the Ministry of Information and Broadcasting acts as the final level of control [3]. • Traceability (Rule 4): Requiring messaging apps to be able to determine who the original recipient of a message is, a step that apps like WhatsApp are pushing to implement, would break end-to-end encryption and violate the core right to privacy [4].

The deterrent effect and paradox of disinformation. India is facing a real disinformation crisis. Viral messages sparked riots and jeopardized public health. But the regulator’s response relies on dangerously long and incomplete language. Using terms like “law and order” can lead leaders to confuse objectively illegal content with political dissent or satire. This ambiguity, coupled with the lack of mandatory judicial review before content is removed, is detrimental. In 2021, the Bombay High Court noted that this gives publishers too much power to “force them to do almost anything,” thereby censoring them themselves.[5] These rules were adopted by statute and were not subject to the rigorous democratic procedures governing traditional law in parliament.

Editorial Independence: Rule 9 Controversy

The most egregious atrocity regarding editorial independence is Rule 9 of the IT Rules 2021 [6]. In August 2021, the Bombay High Court held that government control over editorial content violates Article 19(1)(a) of the Constitution and restrained the operation of Rules 9(1) and 9(3).[7] The high court ruled that “giving a government committee final authority to decide whether to comply with the Code of Ethics creates an unconstitutional pre-emptive restraint that affects the very institutional integrity necessary for journalism.” »[5] Similarly, the Madras High Court upheld the regulatory aspects of the rule, warning that giving a government committee the power to decide what constitutes ethics would amount to an unconstitutional pre-emptive restraint, thereby granting independence to the media.[8]

These cases stem from the landmark case Shreya Singhal v. United States. Union of India (2015), Judgment Based on Ambiguity. The Supreme Court held that Section 66A of the Information Technology Act is highly ambiguous. The court held that mere propaganda falls under Article 19(1)(a) and can only be prohibited if it reaches a high level of incitement to imminent anarchy.[9] FCU Correction and Arbitrator of Truth.

This conflict culminated in the 2023 amendment to the Fact Checking Unit (FCU), which allows governments to deem content related to their issues as false or misleading [10]. This content was then forced to be removed by the intermediary, which risked losing its legal immunity. According to critics, there were three major conceptual errors:

Conflict of interest: Governments have become the arbiters of their own causes, deciding solely what is true about their own policies. o Procedural violations: Content creators are denied the right to be heard before reporting their work, which violates principles of natural justice.

Weaponizing safe harbors: States have turned their backs on individual platforms, using them as enforcement agencies and aligning their legal existence with what governments deem to be true. In September 2024, the Bombay High Court rejected the FCU amendment on the grounds that it failed the proportionality test under Article 19(2) and violated principles of natural justice.[11] The judgment states that access to the internet is critical to freedom of the press and that any form of restriction must be strictly limited, conclusive and subject to judicial review. Privacy or traceability monitoring issues. The technological impasse between governments and technology platforms is evident in the requirements implemented in the IT (Interim Guidelines and Code of Ethics for Digital Media) Regulations 4(2) 2021 to trace message creators [6] [12]. To comply, encrypted platforms must disrupt their architecture to effectively leverage metadata monitoring at scale. WhatsApp faces difficulties due to K.S. Puttaswamy vs. Union of India [13] (Adar judgment) recognized the right to privacy as a fundamental right. According to critics, traceability treats all private communications as baseless and searchable, which not only reverses the investigative process but also turns digital tools into surveillance tools [4].

Conclusion

India is at a regulatory crossroads. Although the potential for misinformation poses a real danger, current IT regulatory systems tend to prioritize administrative convenience over constitutional freedom. States risk destroying the very foundations of democracy by delegating the power to tell the truth to bureaucrats rather than protecting it through independent courts. The answer lies in legislative reform. Congress should clarify what content should be banned and introduce mandatory judicial review of the removal process. Mature democracies are meeting the challenges of the digital age not by strengthening the role of the state in dictating truth, but by establishing transparent processes at all levels and protecting the independence of the press. Despite legal victories, the infrastructure remains in place, which has a chilling effect, forcing journalists and vehicles to resort to extreme self-censorship to avoid being blocked by the executive branch.

Author:–Anvi Kumar, in case of any queries please contact/write back to us atsupport@ipandlegalfilings.com or   IP & Legal Filing.

References

[1] Ahmad, T., & Shankar, R. (2021). Information technology laws: Mapping the evolution and impact of social media regulation in India. DESIDOC Journal of Library & Information Technology, 41(4), 295–301.

https://publicationsdrdo.in/index.php/djlit/article/view/16966

[2] Centre for Advanced Legal Studies Journal (CALJ), Re-Examining Section 69A in Light of Recent Media Blackouts and Rescuing Article 19, available at:

https://www.calj.in/post/re-examining-section-69a-in-light-of-recent-media-blackouts-and-rescuing-article-19

[3] Future of Privacy Forum, India’s New Intermediary and Digital Media Rules: Expanding the Boundaries of Executive Power in Digital Regulation, available at:

https://fpf.org/blog/indias-new-intermediary-digital-media-rules-expanding-the-boundaries-of-executive-power-in-digital-regulation/

[4] WhatsApp Challenges New IT Rule Mandating Identification of First Originator of Information, The Leaflet, available at:

https://theleaflet.in/privacy/whatsapp-challenges-new-it-rule-mandating-it-to-identify-first-originator-of-information

[5] IT Rules 2021: Bombay High Court Stays Digital Media Code of Ethics, LiveLaw, available at:

 https://www.livelaw.in/top-stories/it-rules-2021-bombay-high-court-stay-digital-media-code-of-ethics-179583

[6] Ministry of Electronics and Information Technology (MeitY), Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (as amended up to 6 April 2023), available at:

https://www.meity.gov.in/static/uploads/2024/02/Information-Technology-Intermediary-Guidelines-and-Digital-Media-Ethics-Code-Rules-2021-updated-06.04.2023-.pdf

[7] Article 19 (1) (a) of the Indian Constitution, , available at:

 https://indiankanoon.org/doc/1218090/

[8] Madras High Court Stays Rule 9 of IT Rules, Says They Rob Media of Independence, The Wire, available at:

 https://m.thewire.in/article/law/madras-hc-stays-rule-9-provisions-of-it-rules-says-they-rob-independence-of-media

[9] Shreya Singhal v. Union of India, AIR 2015 SC 1523, available at:

https://indiankanoon.org/doc/110813550/

 [10]Shankariasp Parliament, Fact Check Unit: Legal and Constitutional Analysis, available at:

 https://www.shankariasparliament.com/blogs/pdf/fact-check-unit

[11] Verfassungsblog, India’s Fact-Checking Unit and the Problem of Executive Control Over Truth, available at:

https://verfassungsblog.de/india-fact-checking-unit-fake-news/

[12] Software Freedom Law Centre (SFLC.in), What Is the “Originator” or Traceability Provision Under the IT Rules?, available at:

http://sflc.in/what-originator-or-traceability-provision-information-technology-intermediary-guidelines-and/

[13]  Justice KS Puttaswamy (Retd.) and Anr. vs. Union of India, AIR 2017 SC 4161, available at:

 https://indiankanoon.org/doc/127517806/