Print Friendly, PDF & Email

Insights into Editorial: Nine-pin bowling aimed at free speech, privacy

 

Introduction:

In the digital era, the public at large depends on social media for news, entertainment, etc.

People’s dependence on social media is very dangerous at this time since there is a high risk of it being abused.

For this reason, a need was felt for stringent rules for any form of communication of information via intermediaries.

India is a huge market for these significant social media intermediaries and it now remains to be seen how the entities will decide to proceed, especially after WhatsApp’s lawsuit against the Government of India.

 

Context:

The three-month deadline for social media platforms to comply with the IT Rules, 2021 ended on May 25, 2021.

The Government of India, on May 26, 2021, issued a letter to all the significant social media intermediaries, asking inter alia, the status of compliance by the said intermediaries.

In lieu of the compliance, WhatsApp filed a lawsuit against the Government of India in the Delhi High Court, contesting mainly Rule 4(2) of the IT Rules, 2021 by relying on the Supreme Court’s judgment in the case of Justice K S Puttaswamy vs Union of India.

 

Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021:

  1. Recently, the government has notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.
  2. These new rules broadly deal with social media and over-the-top (OTT) platforms.
  3. These rules have been framed in exercise of powers under section 87 (2) of the Information Technology (IT) Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
  4. The government envisages controlling hate speech which gets proliferated through these platforms and threatens national security.
  5. However, critics pointed that the question of stricter regulation of digital media will lead to restriction of free speech and undermining of democracy.

The Government also studied the models in other countries including Singapore, Australia, EU and UK and has gathered that most of them either have an institutional mechanism to regulate digital content or are in the process of setting-up one.

The Rules establish a soft-touch self-regulatory architecture and a Code of Ethics and three tier grievance redressal mechanism for news publishers and OTT Platforms and digital media.

 

There are ambiguities in the given Rules:

  1. The subject of concern now is the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which threaten to deprive social media platforms of their safe harbour immunity in the event of non-compliance with the said rules.
  2. While there are positive aspects about the said guidelines, there are, equally, glaring ambiguities and stifling susceptibilities that should render these contrary to past Supreme Court of India precedents such as K.S. Puttaswamy.
  3. The Rules must be credited for they mandate duties such as removal of non-consensual intimate pictures within 24 hours, publication of compliance reports to increase transparency, setting up of a dispute resolution mechanism for content removal.
  4. Adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

 

Gagging a right: Freedom to circulate one’s views:

  1. The Supreme Court, in the case of Life Insurance Corpn. Of India vs Prof. Manubhai D. Shah (1992) had elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’.
  2. It went on to say that ‘any attempt to stifle, suffocate or gag this right would sound a death knell to democracy’ and would ‘help usher in autocracy or dictatorship’.
  3. And so, it becomes increasingly important to critically scrutinise the recent barriers being imposed via these Rules against our right to free speech and expression.
  4. The new IT Rules which claim to be a piece of subordinate legislation of the IT Act, travel beyond the rule-making power conferred upon them by the IT Act. This makes the Rules ultra vires to the Act.

 

Fair recourse, privacy issues:

  1. An intermediary is now supposed to take down content within 36 hours upon receiving orders from the Government.
  2. This deprives the intermediary of a fair recourse in the event that it disagrees with the Government’s order due to a strict timeline.
  3. Additionally, it places fetters upon free speech by fixing the Government as the ultimate adjudicator of objectionable speech online.
  4. The other infamous flaw is how these Rules undermine the right to privacy by imposing a traceability requirement.
  5. The immunity that users received from end-to-end encryption was that intermediaries did not have access to the contents of their messages.
  6. Imposing this mandatory requirement of traceability will break this immunity, thereby weakening the security of the privacy of these conversations.
  7. This will also render all the data from these conversations vulnerable to attack from ill-intentioned third parties.
  8. The threat here is not only one of privacy but to the extent of invasion and deprivation from a safe space.
  9. These regulations in the absence of a data protection law, coloured in the backdrop of recent data breach affecting a popular pizza delivery chain and also several airlines highlight a lesson left unlearnt.

 

On the problem of fake news:

The problem here is that to eliminate fake news rather than defining its ambit as a first step, the Rules proceed to hurriedly take down whatever an arbitrary, ill-decisioned, biased authority may deem as “fake news”.

Lastly, the Rules create futile additional operational costs for intermediaries by requiring them to have Indian resident nodal officers, compliance officers and grievance officers.

Intermediaries are also required to have offices located in India. This makes profit making a far-fetched goal for multinational corporations and start-up intermediary enterprises.

Therefore, not only do these Rules place a barrier on the “marketplace of ideas” but also on the economic market of intermediaries in general by adding redundant financial burdens.

Therefore, concluding words on the rapidly diluting right to free speech are only those of caution of a warning that democracy stands undermined in direct proportion to every attack made on the citizen’s right to have a private conversation, to engage in a transaction, to dissent, to have an opinion and to articulate the same without any fear of being imprisoned.

 

Conclusion:

Regulation has an important place in a liberal democracy.

However, given an environment where people are sensitive to content, the regulatory mechanism with a scope of strong government intervention could become an operational nightmare and hamper creativity & freedom of expression.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 is a step toward in the digital area to protect the rights of the public at large and ensuring justice to all.

The new rules aim to establish a self-regulatory framework for online intermediaries, social media sites, streaming services, and digital media firms.

The Delhi High Court is yet to settle the ever-growing debate over the Rules in Foundation of Independent Journalism & Ors v. Union of India.

However, it has gone through various rounds of critic for going far beyond anything that is permissible in a democracy and being in contravention to the Fundamental Right of freedom of speech and expression.