EDITORIAL ANALYSIS : It is a new assault on India’s liberty

Source: The Hindu, The Hindu

• Prelims: Governance(Adhar, UIDAI, KYC, IT rules, OTT, Article 19 etc
• Mains GS Paper II: Government policies and interventions for development of various sectors and issues arising out of them etc
• ARTICLE HIGHLIGHTS
• The Union government introduced a new set of measures with a view to crushing fake news and misinformation on the Internet.

INSIGHTS ON THE ISSUE

Context

IT Rules 2021:

Amendments inInformation Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, or IT Rules:

• It grants to the Union Ministry of Electronics and Information Technology (MeitY) power to create a “fact check unit”.
  • It will identify false or misleading online content that concerns the central government’s business in any manner.
• If social media intermediaries fail to prevent users from hosting or publishing information that have been flagged as false by the fact check unit, they will lose their “safe harbor”

Consequences:

• The Union government will decide what information is bogus.
• Government gets to exercise wide-ranging powers of censorship by compelling intermediaries to take down posts deemed fake or false.
• Democracy: In a democracy, where information is free, and where the right to freedom of speech is constitutionally guaranteed, the new law must strike us as deeply abhorrent.

Information Technology Act, 2000:

• It provides “legal recognition” for electronic commerce.
• Section 79: It provides “safe harbor”, by granting immunity to intermediaries:
  • so long as these entities observe “due diligence” in discharging their duties under the law
  • so long as they follow other guidelines prescribed by the state.

IT Rules 2021:

• The rules sought to regulate intermediaries through MeitY and the digital news media, including over-the-top (OTT) media services, such as Netflix and Amazon Prime.
  • Through the Union Ministry for Information and Broadcasting.
• IT Rules imposed a series of onerous obligations, a breach of which could result in a loss of safe harbor.
• The rules required social media platforms, in particular messaging services.
  • To provide technological solutions that would enable them to identify the first originator of any information on their service
  • where demanded by the government, under a set of given circumstances
  • where mandated by an order of court.

Implications:

• Issues of end-to-end encryption
• Violation of right to privacy
• Petitions pending in the Supreme Court of India.

What might the solutions to this problem be?

• Whitney vs California(Justice Louis Brandeis’s classic 1927):“if there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”.
• Article 19(1)(a) grants to every citizen a right to freedom of speech and expression.
  • That right can only be limited through reasonable restrictions made by law on one or the other of the grounds stipulated in Article 19(2), namely
    • “the interests of the sovereignty and integrity of India
    • security of the State
    • friendly relations with foreign States
    • public order, decency or morality
    • in relation to contempt of court
    • defamation or incitement to an offense”.
  • Any workable and constitutionally committed campaign against fake news would have looked first towards a comprehensive parliamentary legislation on the matter.
    • Legislation emanating out of such a process would have tethered limitations on speech stipulated in Article 19(2).
    • It would ensure that the government cannot act as an arbiter of its own cause.
  • In France: Legislation exists to counter the spread of misinformation during elections
    • The declaration is made not by the government but by an independent judge.

Issues:

• Fake news and misinformation are not grounds on which speech can be limited.
  • If a piece of information is proven to be false and has a direct bearing on one of the grounds stipulated in Article 19(2), such speech can be limited through law.
• Amendments made to the IT Rules do not caveat the restraints they place in any manner.
  • They confer on the Fact Check Unit limitless powers to decide what information is false and, in the process, compel social media intermediaries to act based on these findings.
• The use of open-ended and undefined words, like“any business”: It indicates that the government will have complete freedom to decide what each of us can see, hear, and read on the Internet.

Judicial stand:

Shreya Singhal vs Union of India (2015):

• The Supreme Court struck down Section 66A of the IT Ac
• A law that limits speech can neither be vague nor overbroad.

Relevance to IT Rules Amendment:

• The notification fails to define fake news.
• It allows the government’s fact-check unit to make declarations on the veracity of any news “in respect of any business” that involves the state.

Intermediary under the law:

• It refers to any person who receives, stores, or transmits electronic records
• It includes Internet service providers, search engines, and social media platforms.
• For example: WhatsApp, Signal, Twitter, Facebook, and Instagram are all what the law construes as intermediaries.

Way Forward

• A proper, lawfully enacted statute would have demanded a decision on whether a directive to remove misinformation is the only solution to fake news, or whether there are other, less restrictive alternatives available
• The amendments to the IT Rules are not only a product of pure executive instruction but also eschew each one of these considerations.
  • Intermediaries faced with the threat of prosecution will naturally weed out information deemed false by the Fact Check Unit.
  • It will only remain for the state to tell us what the truth is.
• The rights of the press, and indeed of the common person, to question authority, to speak truth to power, will be diminished, and our civil liberties obliterated.

QUESTION FOR PRACTICE

The emergence of Fourth Industrial Revolution (Digital Revolution) has initiated e-Governance as an integral part of the government”. Discuss.(UPSC 2020) (200 WORDS, 10 MARKS)