Last week, the Union Government issued a set of rules under the Information Technology Act, noting that it was superseding rules issued under Section 79 of that statute in 2011. They represent a dramatic, dangerous move by the Union Government towards cementing increased censorship of Internet content and mandating compliance with government demands regarding user data collection and policing of online services in India. The government’s gazette notification has further claimed that the rules were also issued under the legal authority to specific procedure for blocking web content under Section 69A of the IT Act.
Instead of specifying the basic due diligence requirements intermediaries had to perform in order to make use of the Section 79 safe harbour provision, the executive branch has created new rules that apply only to “significant social media intermediaries” — a term that appears nowhere in the Information Technology Act.It has included mandates for retention of user data by such intermediaries for use by government agencies and clauses on how popular messaging services have to enable the tracing of the original creator of a message (which is regarded as not possible for end-to-end encrypted messaging services without introducing flaws in their systems) even though the sections in the law cited by the government do not give them that power.
The new rules to regulate all types of digital platforms, with the idea of redressing user grievances and ensuring compliance with the law, are deeply unsettling as they will end up giving the government a good deal of leverage over online news publishers and intermediaries. A government press note termed it “progressive” and “liberal”. It also claimed the rules seek to “address people’s varied concerns while removing any misapprehension about curbing creativity and freedom of speech and expression”. That the new rules pertain only to digital news media, and not to the whole of the news media, hardly provides comfort, as the former is increasingly becoming a prime source of news and views. Further, it is of significant concern that the purview of the IT Act, 2000, has been expanded to bring digital news media under its regulatory ambit without legislative action, which digital liberties organisations such as the Internet Freedom Foundation have flagged.
The three-tier regulatory mechanism will seek to redress complaints with respect to the digital platforms’ adherence to a Code of Ethics, which among other things includes the ‘Norms of Journalistic Conduct’, compiled by the Press Council of India, the Programme Code of the Cable Television Networks (Regulation) Act, as also a negative list of content that shall not be published (essentially what one would encounter under law as reasonable restrictions to free speech). According to the rules, “Any person having a grievance regarding content published by a publisher in relation to the Code of Ethics may furnish his grievance on the grievance mechanism established by the publisher.
The new rules have increased the compliance burden for social media platforms too. The bigger of these platforms will have to appoint chief compliance officers, to ensure the rules and the laws are adhered to, and a nodal officer, with whom the law enforcement agencies will be coordinating, apart from a grievance officer. Such platforms in the messaging space will have to “enable the identification of the first originator of the information on its computer resource” based on a judicial order. Its release has referred to a 2018 Supreme Court observation that the government “may frame necessary guidelines to eliminate child pornography, rape and gangrape imageries, videos and sites in content hosting platforms and other applications”, besides making a mention of discussions in Parliament about social media misuse and fake news.
The rules have grown to include a chapter on how digital news sites have to be registered before the Ministry of Information and Broadcasting, and further laid out a mechanism by which streaming video sites featuring original content (which are generally not regarded as intermediaries for the purposes of Internet law) have to agree to a government-supervised “self regulatory system”. This, even though digital news service registration is not required under the IT Act and streaming video content has not been included under the ambit of the Cinematograph Act.
The Government of India already has significant legal powers, with practically no institutionalised oversight or true checks and balances, to force censorship and surveillance on Internet platforms and other web services in India.The Union Government, when issuing these rules, made reference to increased global interest in regulating Big Tech. However, in advancing Internet content control interests and increased requirements around government demands for user data, while not advancing surveillance law reform or enacting a strong statutory data protection framework, it appears that the interest is more in advancing Big Government and trying to force technologists to fall in line, no matter the cost to our fundamental rights in our Internet age.
Although the freedom of the press per se is not an explicitly prescribed fundamental right in the Indian Constitution, and is, rather, a derivative right from Articles 19(1)(a) and 19(1)(g) which give every citizen the right to free speech and expression, and to practise any profession respectively, these freedoms have in practice become constitutive and definitive of the fourth estate in the country. That fourth pillar of democracy must be in a dynamic relationship of checks and balances vis-à-vis the other three pillars: the executive, the legislature and the judiciary. It is a healthy tension among the four pillars that keeps the democratic edifice strong and vibrant.
The fourth estate in India, though, has increasingly been at the receiving end of draconian executive acts, invocations of legislative privilege and judicial intolerance. If the fourth estate is to be treated by the executive as an inconvenience to be sidelined, surely the other pillars, the judiciary and the legislature, lay themselves open to the same fate. Already characteristics of democracy, like the illiberal democracy in Orbán’s Hungary or authoritarian democracy here at home, are intimations of the uncertainties ahead. Surely, the body blow delivered to our democracy by the Emergency of 1975-77 must be, more than a bad memory, a lesson at this conjuncture.