Draft IT Rules 2026 Explained: Balancing Free Speech and Online Safety

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Context

Following a Supreme Court directive, the Ministry of Information and Broadcasting is drafting the Information Technology (Digital Code) Rules, 2026.

What are the key provisions of the draft IT (Digital Code) Rules, 2026?

The draft rules are proposed under Section 87(1) of the Information Technology Act 2000, to balance the fundamental right to freedom of speech and expression (Article 19(1)(a)) with the "reasonable restrictions" permitted under Article 19(2) of the Constitution.

Definition of Obscenity

Adopts standards from the Cable Television Networks Rules, 1994, defining content as obscene if it is lascivious, appeals to prurient interests, or tends to "deprave and corrupt" viewers.

Strict Prohibitions: Digital content is prohibited if it:

• Offends good taste or decency.
• Contains attacks on religions, communities, or nationalities.
• Includes obscene, defamatory, or deliberately false information.
• Incites crime, glorifies violence, or causes disorder.
• Denigrates women, children, or persons with disabilities.

Mandatory Age-Based Classification

Requires all digital content to be classified into specific age categories (e.g., U, UA 7+, UA 13+, UA 16+, and A) based on themes like violence, nudity, sex, and horror.

Parental Controls & Verification

Platforms must implement parental locks for content rated 13+ and above, alongside reliable age verification systems for adult-only (A-rated) content.

Expansion of the "Code of Ethics"

Introduces a "list of don’ts," prohibiting content that denigrates women or persons with disabilities, promotes communal violence, or targets children with explicit language.

Synthetic Media Regulation

Intermediaries must label AI-generated or "synthetic" content. This includes embedding permanent metadata identifiers and ensuring visible labels cover at least 10% of the surface area for images or the first 10% of audio duration.

Expanded Due Diligence

Social media platforms are tasked with verifying user declarations regarding synthetic media using automated tools and ensuring such labels cannot be easily suppressed or removed.

Why is regulation of online content necessary?

Constitutional Mandate

To enforce the "reasonable restrictions" under Article 19(2), which allows limits on free speech in the interest of public order, decency, and morality.

Protecting Vulnerable Populations

To shield children and adolescents from harmful and age-inappropriate content, mirroring global efforts like the UK's Online Safety Act 2023.

Curbing Harmful Content

To prevent the spread of hate speech, misinformation, and content that incites violence or communal hatred.

Judicial Directives

The Supreme Court highlighted a legal vacuum where there is little accountability for harmful user-generated content that can damage reputations and cause social harm.

What are the major concerns raised against the draft rules?

Vagueness and Subjectivity

Terms like "good taste" and "decency" are not clearly defined, which could lead to arbitrary enforcement and suppress artistic and political speech. 

This echoes the concerns that led the Supreme Court to strike down Section 66A of the IT Act in the landmark Shreya Singhal vs Union of India (2015) case.

Applying Outdated Norms

Applying the 1994 Cable Television Networks Act to internet content is widely debated as inappropriate due to significant technological and behavioral differences between traditional TV and online streaming.

Regulatory Uncertainty

The new rules are seen as a policy reversal from the IT Rules, 2021, which acknowledged the difference between broadcasting and on-demand content. This could deter investment and innovation in the digital media sector.

Privacy Concerns

The mandate for "reliable age verification" for adult content raises privacy issues, conflicting with the fundamental right to privacy established in the Justice K.S. Puttaswamy (2017) judgment.

Failure to Differentiate Content Types

The rules do not distinguish between professionally produced content and user-generated content, which require different regulatory approaches.

Way Forward to create a balanced and effective framework 

Meaningful Stakeholder Consultation

Engage with content creators, platforms, civil society, and technical experts to ensure the rules are practical and protect fundamental rights.

A Differentiated Regulatory Approach

Create separate rules for Online Curated Content (OCC) focusing on self-regulation and for User-Generated Content (UGC) focusing on strong moderation and grievance redressal systems.

Precision in Legal Definitions

Replace vague terms with clear, objective, and narrowly-defined criteria to prevent misuse and ensure any restriction on speech is directly linked to the grounds in Article 19(2).

Adopt a Co-regulatory Model

Combine industry self-regulation with oversight from an independent body, rather than direct state control. Promote privacy-preserving technologies for age verification.

Promote Digital Literacy

Invest in nationwide campaigns to empower citizens, especially parents and children, to navigate the internet safely and responsibly.

Learn Lessons from Global Best Practices

• EU's Digital Services Act (DSA): Imposes tiered obligations on platforms to tackle illegal content, with stricter rules for very large platforms. It emphasizes transparency and user control.
• UK's Online Safety Act (OSA): Places a statutory "duty of care" on platforms to mitigate risks, especially for children. It is overseen by an independent regulator (Ofcom).
• Australia's eSafety Commissioner: An independent regulator with the power to investigate and order the removal of harmful online material, providing a model for swift, expert-led action.

Conclusion

The proposed IT (Digital Code) Rules, 2026, need to shift from broad content policing to a strategy that respects digital rights. By adopting global best practices and using precise definitions, the government can create a safer digital space while protecting freedom of expression and innovation.

Source: INDIAN EXPRESS