LIJDLR

INTERMEDIARY LIABILITY IN INDIA POST 2021 RULES: A CONSTITUTIONAL BALANCE OF FREE SPEECH AND REGULATORY ACCOUNTABILITY

Madhumitha Gopinath, Author is an Advocate at Bar Council of Tamilnadu and Puducherry, (India)

The rapid expansion of digital communication platforms has significantly transformed democratic discourse in India, raising complex regulatory and constitutional questions regarding the liability of online intermediaries. Public expression is now increasingly mediated through digital intermediaries, particularly social media platforms, which has generated complex legal and constitutional questions regarding their regulation. An original protection of intermediaries under the Information Technology Act, 2000, Section 79, although conditional, was the protection of the so-called safe harbour by intermediaries. But with introduction of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, due diligence has been increased particularly among Significant Social Media Intermediaries. The question that is addressed in this paper is whether the post-2021 regulatory framework is a recalibration of intermediary responsibility as per Article 19(1)(a) of the constitution of India. Based on the successful case law in Shreya Singhal v. Union of India, the paper examines the application of constitutional precepts of proportionality, procedural protection and reasonable restriction in the digital context based on Article 19(2). Instead of considering the regulatory change as a break with the protection of free speech, this study assesses whether the changing frame indicates an effort at balancing between innovation, accountability, and constitutional freedoms. The paper concludes that the viability of intermediary regulation may be ultimately based on the balanced implementation, transparency, and reiteration of judicial control to make sure that digital regulation keeps in tune with the constitutional values.

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Research Paper LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 1, Page 1247–1282.
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