Advisories, Safe Harbour And Executive Power: Rethinking Draft 2026 IT Rules

This article argues that the impact of the amendment lies not in creating entirely new powers, but in increasing the practical influence of executive action over content governance. When read alongside the proposed changes to Rules 8 and 14, Rule 3(4) raises important questions about intermediary liability, executive discretion and the regulation of online speech.

From Advisory to Obligation

Rule 3(4) is crucial not because it introduces an entirely new idea, but because it gives a more formal place to a practice that already exists. MeitY has frequently issued advisories on issues such as deepfakes, online betting and misinformation, and platforms have generally treated them seriously. Even where such advisories were not legally binding, ignoring them was rarely viewed as a realistic option. The amendment builds upon this existing practice by bringing these communications within the due diligence framework. It expressly includes advisories, clarifications, guidelines and similar communications within the due diligence framework. At the same time, the rule is not without limits. Rule 3(4)(b) requires these communications to be issued in writing, identify their legal basis and remain consistent with the parent legislation. This means that an advisory cannot simply be issued without any statutory backing, and courts remain free to review executive action that exceeds the powers granted under the Act.

Most intermediaries are unlikely to challenge every advisory they receive. Litigation is expensive, uncertain and time-consuming. Faced with the possibility that non-compliance could later be questioned, many platforms are likely to comply even where the legal position is not entirely clear. Rule 3(4) does not change what an advisory is. What changes is the position of intermediaries receiving one. While advisories remain formally distinct from binding directions, intermediaries may have little incentive to treat them very differently in practice.

Reconfiguration of Safe Harbour

Safe harbour protects intermediaries from liability for third-party content, provided they comply with the due diligence requirements prescribed under s 79 of the IT Act 2000^[2]. By bringing advisories, guidelines and similar communications within that framework, Rule 3(4) gives these instruments greater significance than before. Most platforms are unlikely to ignore an advisory and wait for a court to settle the issue. Litigation is expensive and time-consuming, while losing safe harbour can expose intermediaries to legal risk leaving them with compliance as the safer option.

Under Rule 3(4), it can also become a reason to follow executive guidance. It was introduced to shield intermediaries from liability arising from third-party content. Under Rule 3(4), it can also operate as a reason for platforms to follow executive guidance even when the legal basis or scope of that guidance remains contested. The legal framework may remain the same, but executive communications are likely to carry far more weight in practice.

Extending Regulatory Reach

The proposed amendments are not limited to intermediary liability. Changes to Rules 8 and 14 also broaden the reach of the existing regulatory framework. One such change relates to news and current affairs content shared on intermediary platforms. Under the existing framework, the rules primarily apply to recognised publishers of news and current affairs content. The proposed amendment extends certain provisions to content shared by users on intermediary platforms. The proposed amendment is not without justification. News is no longer produced exclusively by newspapers and television channels. Independent creators, influencers and digital aggregators often shape public discourse in much the same way as traditional media organisations. At the same time, the amendment leaves certain questions unanswered. It does not convert ordinary users into publishers under the IT Rules, nor does it impose upon them the obligations applicable to recognised publishers. However, it does bring a wider range of content within the regulatory process.

The amendment says very little about when such intervention would be justified. As a result, decisions concerning online news content may increasingly depend upon executive discretion rather than clearly defined legal standards. The amendment to Rule 14 raises a similar concern. The Inter-Departmental Committee served as the last stage of the grievance redressal mechanism under the existing framework. Complaints would ordinarily reach the Committee only after passing through the earlier levels of review. The proposed amendment allows the Ministry to refer matters directly to the Committee. This means that regulatory scrutiny need not always begin with a complaint from an affected person. Rule 14 reflects the same broader trend visible in Rule 3(4), which is a greater role for executive action within the content regulation framework.

These changes are important because it alters the function of the Committee within the existing regulatory framework. Previously, the grievance mechanism acted as a procedural filter before matters reached the Committee. Direct referrals reduce the importance of that filter and allow scrutiny to begin at the initiative of the executive itself. As a result, the Ministry is no longer limited to responding to complaints but may also play a more active role in determining which matters become subject to review. These amendments do not create new categories of prohibited content. Their effect lies in expanding the range of content that may enter the regulatory process and increasing the role of the executive in initiating that process. In the end, how these powers are exercised in practice will determine whether that expansion proves beneficial or problematic.

Implications for Online Speech

The amendments do not ban any new form of speech. Even so, they could affect how speech is moderated online. Yet their impact on online speech cannot be ignored. The amendments do not authorise censorship. Their effect is likely to be felt through content moderation decisions taken by intermediaries. The first concern is over-compliance. Rule 3(4) does not require intermediaries to remove content merely because an advisory has been issued. However, the changes proposed might encourage platforms to handle the content management cautiously by tying executive communication to due diligence requirement under s 79 of the IT Act.

Even in situations where the legal position is unknown, intermediaries may try to remove or restrict content due to the ambiguity of the implications of non-compliance. This becomes of more importance because content moderation decisions are often made under the pressure and with limited information. The concern is not entirely new. In Shreya Singhal v Union of India,^[3] the Supreme Court sought to prevent online speech from being restricted through uncertain standards and informal forms of pressure. Although Rule 3(4) does not formally convert advisories into binding directions, it narrows the practical distinction between the two by placing them within the due diligence framework.

Individuals and intermediaries should be able to understand the rules that govern their conduct and the consequences that may follow from non-compliance. While Rule 3(4)(b) requires advisories and guidelines to identify their legal basis, uncertainty may still remain regarding the practical weight these communications carry within the due diligence framework. The less predictable the framework becomes, the greater the likelihood of over-compliance by intermediaries.

The modification to Rule 14 raises a relevant issue. The role of executive discretion in deciding whether content is subject to review or not is increased by enabling the Ministry to directly recommend to the Inter-Departmental Committee. The executive gains power to review internet content even if it does not restrict speech constitutionally. The amendment increases the executive's role in deciding which content becomes subject to review. In Anuradha Bhasin v Union of India, the Supreme Court stressed the importance of legality and procedural safeguards where measures affect online expression^[4]. The broader the scope of executive intervention, the greater the need for clear standards governing the exercise of that power. The importance of procedural safeguards and clear rules to be laid is of utmost importance, especially where decisions may affect the visibility and circulation of lawful online expression. Although, digital platforms play an important role in shaping public discourse, and governments have a legitimate interest in addressing harmful content. But, the key challenge lies in ensuring that regulatory objectives are pursued through mechanisms that remain transparent, predictable and consistent with constitutional principles.

The proposed 2026 amendments do not appear to introduce a radically new system of intermediary regulation. In many respects, they formalise practices that have already become familiar within India's digital governance framework. What changes is the place these practices occupy within the law. By bringing advisories within the due diligence framework and expanding the scope of executive-initiated review, the amendments give the executive a greater role in shaping how online content is regulated.

The constitutional issues raised by the proposed draft concerns the conditions under which online speech is regulated than the direct restrictions on speech. The increased engagement of executive through the instruments for content review raised question about legal certainty and procedural safeguards. In such situations, intermediaries with regulatory uncertainty may choose blind compliance over contesting the directions issued. Whether these concerns will materialise in practice or not depends upon how the proposed draft will be implemented. However, the debate surrounding these amendments is not simply about intermediary liability, but about the balance between effective regulation and the protection of lawful online expression.

1. Ministry of Electronics and Information Technology, Draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2026 https://www.meity.gov.in/static/uploads/2026/04/c6a19720a5818c853e526a082e7f8f9a.pdf accessed 15 June 2026 ↑

2. Information Technology Act 2000, s79. ↑

3. Shreya Singhal v Union of India AIR 2015 SC 1523. ↑

4. Anuradha Bhasin v Union of India AIR 2020 SC 1308. ↑