(Ayush Raj is a 2nd year law student at Maharashtra National Law University, Nagpur)
Featured painting- ‘Medicare and Information Technology’ by Leon Zernitsky
Introduction
What do the Rules Mean: Analysis of their Implications
The newly notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter “the Rules”) have spurred a new series of debates regarding the right to free speech and the expression of dissent against the government. The Rules that have been rolled out by the Ministry of Electronics and Information Technology (hereinafter “MEITY”) and the Ministry of Information and Broadcasting (hereinafter “MIB”) are alleged to be contradicting Article 19(1)(a) of the Indian Constitution which guarantees free speech. In this piece of article, the author analyses the constitutionality of the notifications, the challenges put forth, and critically scanning their effects on free speech and privacy. The article also examines the need for OTT (Over The Top) regulations viz-a-viz Article 19.It is also noteworthy that these rules have been put forward at a time when the big tech companies are being sued and served notices for promoting hate speech, rumours, religious disharmony, and incitement to violence. The Rules have been framed to prevent the abuse and misuse of social media but it is very pertinent to strike a balance between regulation of these digital platforms and the right of free speech.
The rules intend to satisfy dual objectives, first accountability and transparency for the intermediaries, and second, effective regulation of the published content. The change that these new rules create is that the discretionary power of the platform to decide whether the content should be taken down has now been curtailed. The government can now essentially ask to take down a particular content based on the parameters of reasonable restrictions. Another significant aspect is the provision of losing intermediary status granted under Section 79 of the IT Act, which acts as a shield and protects social media platforms from legal consequences. This will make them equally responsible for hosting unlawful content and will attract criminal liabilities.
Responding to these Rules, there have been certain changes in the structure of regulatory bodies of the television industry. The Indian Broadcasting Foundation has renamed itself as the Indian Broadcasting and Digital Foundation (IBDF) to include the OTT platforms under its realm. The IBDF is also planning to form Digital Media Content Regulatory Council (DMCRC) to curate and filter the online content that is to be published. All these measures are welcome steps provided they work with effective diligence, proper checks and are allowed to work autonomously. The issue of autonomy arises because of the concerns regarding the government’s interference and oversight provisions.
Highlighting the Ambiguities
The prime objective of these Rules is to regulate the OTT, digital and social media platforms and make it an inclusive space for all. The main provision of the guidelines includes a three-tier mechanism for the regulation of displayed online content. The first tier is self-regulation by the entity, the second tier incorporates regulation by self–regulating bodies established by the entity and the final tier involves an oversight mechanism by the Central Government. The main issue in the oversight mechanism that needs urgent attention is the lack of legislative backing for grievance redressal in the third tier. The reason why separate legislation is required for news media is that it doesn’t come within the scope of the Act. The Rules talk of “publisher of news and current affairs content” but the definition and scope as to what would exactly be included under this domain remain unclear and hence the discretionary power rests with the government in this regard. The Rules further state that censorship ensuing from their regulations shall be tested on the grounds of public order, friendly relations with foreign countries, morality, integrity, and sovereignty of the nation. The proponents argue that this provision is within the domain of reasonable restrictions placed under Article 19(1)(a), however, the main concern is again regarding the arbitrary nature of the scope of these grounds.
Is Issuing Regulatory Guidelines an Overreach of Powers?
In the case of K. N Guruswami v. State of Mysore, the Supreme Court ruled that executive actions cannot contradict legislative intent or surpass the powers provided by the parent Act. The Rules have been notified under clauses (z) and (z(g)) of Section 87 (2) of the Act which deals with intermediaries and not news publishers. Clause (z) deals with Section 69A, which allows the central government to issue directions to an intermediary to block content in the “interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offense relating to above”. Hence the regulations concerning intermediaries fulfil the legislative guidelines but the contention regarding the illegality of restricting online media still stands. Moreover, Part II of the Rules creates separate classes (social media intermediaries and ‘significant’ social media intermediaries) of social media intermediaries based on their user base and the applicability of Rules change with the change in class. This grants wide discretionary power to the government in deciding which social media intermediary will be exposed to what type of norms. Additionally, Rule 4 authorises the government to switch the classifications and ask a social media intermediary to comply with the norms of ‘significant’ social media intermediary. Such an arbitrary classification within the same group of companies based on vague parameters and sole discretion of the government violates Article 14 and fails the test of intelligible differentia as mandated by the Supreme Court in Anwar Ali Sarkar. It is noteworthy that Rule 4 allows the government to create arbitrary distinctions and hence, suffers from the failure of test of intelligible differentia. Furthermore, this Rule suffers from the vice of excessive delegation as it gives space to the potential abuse of law by virtue of absolute discretion. This creates conflicts with the Supreme Court’s ruling in E.P Royappa wherein the apex court restricted malafide and arbitrary use of legislative powers and the abuse of discretion.
Furthermore, allowing tracing and tracking of the originator of the messages sent on digital platforms such as WhatsApp and Telegram is a breach of the right to privacy which has been declared as a fundamental right under Article 21 by the Supreme Court in Puttaswami v. Union of India. Tracing the first originator following an executive or judicial order can seriously hamper the fundamental right of privacy as it would raise a conflict with the end to end encryption of private texts. A holistic interpretation of the Rules also signifies the undoing of the judgement of Shreya Singhal wherein the apex court struck down Section 66-A of the IT Act, 2000 which penalised “offensive” content on grounds of arbitrariness.
Requirement of Due Diligence for Social Media Intermediaries and its Positive Aspects
According to the Rules, the intermediaries are required to furnish asked information to specialized government authorities with regard to prevention, investigation, detection, and prosecution of cybercrimes. Further, the intermediaries are restricted from hosting any unlawful content with respect to the law in force. In case, any such content is displayed they are required to remove it no later than 36 hours of receiving an order. Preservation of certain information is also mandatory, subject to the requirements of the governing law. Additionally, the most significant aspect of due diligence is the grievance redressal mechanism. It stipulates the mandatory appointment of a Grievance Redressal Officer (GRO) whose contact details must be made public. The GRO is required to dispose it off within 15 days of filing the complaint. This step of the government should be appreciated because it is aimed at curbing hate speech, online harassment, and cyber security. Moreover, efficient implementation of this guideline will make the online platform safer for women and will increase free and fair expression with minimised intimidation. The provision of retaining the information from 90 days according to the Information Technology Rules, 2011; to 180 days will ensure due compliance for a long period of time. Furthermore, appointment of a Chief Compliance Officer would lead to effective monitoring of compliance activities as well as place accountability on the breach of such provisions.
Concluding Remarks
The whole idea behind these Rules can be asserted as soft regulations rather than strict censorship. However, it is very clear that these regulations are not alike for every platform. Tracing the first originator and the oversight mechanism of the government implies that online content will now be subject to much more scrutiny. The intent of drafting these Rules is to curb the misuse of social media, OTT platforms, and other online platforms. While accessing the constitutionality of these Rules, one must be cognizant about frequency of spreading of fake news, nexus of terror activities, display of obscene visuals and derogatory language, child pornography, spurring religious riots and other anti – national activities. For the aforementioned reasons and the catalytic role played by the internet and social media in them, it was very timely to bring such a code for internet intermediaries and OTT platforms. It can be said that the formulation of these Rules was necessary to re – evaluate the responsibilities of the intermediaries and ensure their submissiveness to the law of the land. However, in the backdrop of recent controversial activities and public protests, fair and regulated use of these Rules seems dubious. These Rules aren’t solving the dearth of proper legislations on cyber regulations rather they just empower executive to exercise their discretion and subvert judicial process. While seeking information and regulating intermediaries in certain cases might prove helpful, the inclusion of digital news media in the same domain can have far reaching consequences. Hence, it is imperative that every concerned stakeholder is taken into confidence through proper consultations with the aim to make the Rules effective, balanced, and respectful to the constitutional mandate.
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