[This post has been authored by SpicyIP intern Aditi Agrawal. Aditi is a final-year B.A., LL.B (IPR Hons.) student at The ICFAI University, Dehradun. Her previous posts can be accessed here.]

On 26th December 2024, the Delhi Government issued a gazette notification (F. No. 11/24/2024/HP-II/4236-4244), designating Delhi Police as the nodal agency for regulating digital content hosted or published on intermediary platforms in the National Capital Territory of Delhi. This move, reported earlier on January 9 by Aditi Agrawal in Hindustan Times, was made under the powers conferred by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and Section 79 of the Information Technology Act, 2000.

Key Provisions of the Notification

The notification designates Delhi Police as the nodal agency of the NCT Delhi for performing functions under Section 79(3)(b) of the Information Technology Act, 2000. Under Section 79(3)(b) of the IT Act, intermediaries are mandated to remove or disable access to unlawful content upon receiving a court order or directive from a government-established agency. Rule 3(1)(d) of the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, further delineates these responsibilities by requiring intermediaries to act promptly on data requests or takedown orders issued by authorized entities. The specific responsibilities and roles outlined in the notification are as follows:

• The Joint Commissioner of Police, IFSO, Special Cell is appointed as the State Nodal Officer. The Intelligence Fusion & Strategic Operations, IFSO of Delhi Police functions under the Special Cell and is a specialised unit that handles all complex and sensitive cases of cyber crime.
• The Deputy Commissioner of Police, IFSO will act as Assistant State Nodal Officer, assisting the State Nodal Officer in carrying out the responsibilities outlined in the notification.
• Deputy Commissioners of Police of Districts, IFSO, Economic Offences Wing (EOW), Crime, Special Cell, Special Branch, Indira Gandhi International Airport (IGIA), Railways and Metro as designated officers will be responsible for issuing take-down notices for unlawful content identified in their respective jurisdictions. These officers will notify the relevant intermediaries about the unlawful information and ensure its removal.

Overview of Section 79 of the IT Act, 2000

Section 79 of the IT Act, 2000 provides safe harbour to intermediaries, protecting them from liability for third-party content on their platforms if they i) merely provide access to a communication system; ii) do not initiate, select the receiver, or modify content; iii) observe due diligence and follow Central Government guidelines. However, intermediaries lose protection if they aid unlawful acts or fail to promptly remove unlawful content upon notice while preserving evidence.

Takedown Orders and Intermediary Responsibilities

The notification ties back to Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which governs the responsibilities of intermediaries in handling unlawful content. The Rule mandates intermediaries to act upon receiving a court order or notification from the government. They must remove unlawful content threatening sovereignty, integrity, public order, or decency, among other concerns, within thirty-six hours of receiving the order or notification. 

The Delhi Government’s notification authorizing the Delhi Police to issue takedown orders under Section 79(3)(b) of the Act raises significant concerns regarding procedural fairness and constitutional compliance, especially when viewed in light of the Supreme Court’s judgment in Shreya Singhal v. Union of India. In Shreya Singhal, the Supreme Court emphasized the importance of procedural safeguards in the Blocking Rules 2009, which required both intermediaries and content creators to be heard and for reasons to be recorded before issuing takedown orders. These safeguards ensured transparency and allowed for judicial review, preventing arbitrary decisions. 

In contrast, the Delhi Police’s role as the nodal authority for issuing unlawful content takedown orders lacks such procedural safeguards. The absence of explicitly defined review mechanisms in the notification leaves room for further discussion on what criteria will be employed to assess potentially unlawful content, undermining the necessary checks and balances that ensure accountability and fairness. 

The author would like to thank Sabeeh and Praharsh for the swift and insightful edits on this piece.