‘The changes in IT Rules are bypassing checks and balances’: Prateek Waghre

The Policy Director of the Internet Freedom Foundation called the proposal to constitute a “fact-check unit” an “unconstitutional exercise”.

Prateek Waghre: “To what extent will regulating the Internet alone solve the underlying problem?” | Photo Credit: By special arrangement 

On April 6, the Ministry of Electronics and Information Technology (MeitY) notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023). The proposed amendments primarily concern online real money gaming intermediaries. However, MeitY also added a proposal regarding the constitution of a “fact-check unit”, which would have much broader ramifications for all intermediaries, including social media, OTT platforms, and digital news platforms.

This fact-checking unit, once notified by the government, is tasked with monitoring the Internet for “fake or false or misleading” content about the Union government, thus granting the government the discretionary power to label content about itself as fake, false, or misleading. This has led to criticism from digital rights defenders and organisations, editors, non-profits, and others.

The Editors Guild of India released a statement on April 7 saying that this amendment will have “deeply adverse implications for press freedom in the country”. Urging MeitY to withdraw the notification, the Guild said that the amendment was “akin to censorship”.

The stand-up comedian Kunal Kamra filed a writ petition in the Bombay High Court challenging the constitutional validity of the amendment. The court sought from MeitY a “factual background” to the amendment and asked why the notification should not be stayed.

Internet Freedom Foundation (IFF), an organisation working on digital liberties, has raised concerns about the amendment since January when it was first proposed. “Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise,” it said in a statement on April 6. In an interview with Frontline, Prateek Waghre, Policy Director of IFF, discussed the issue at length. Excerpts:

Can you explain what “intermediary” and “safe harbour” mean?

An intermediary is defined as “any person who on behalf of another person receives, stores or transmits an electronic record or provides any service with respect to that record…”. This broad definition encompasses a range of services from cyber-cafés to any service on the Internet. So, your social media platform, the Internet service provider you use, a service that resolves Domain Name System (DNS) requests, and many websites where we transact, post reviews, etc., are classified as intermediaries. The idea is that an intermediary facilitates an exchange of information.

As part of the IT Rules, there exists a concept of intermediary liability and safe harbour. For a website that allows user-generated content, allows people to post, and allows other people to transact, there is a question of how liable they should be for the actions of others on their platforms, websites, or services.

There is a balance here: as long as intermediaries meet a set of due diligence requirements that have been defined, they are not directly liable for the actions of their users. You still have other compliance requirements to meet as a company, but you have some shield where you aren’t prosecuted for the acts of others.

The current amendment is not the only problematic one. There is a precedent of overreach in the IT Rules amendment of 2021. What happened then?

The IT Rules 2021 are, in many ways, where this problem started. The executive, through subordinate legislation, was trying to give itself the power and ability to do things that ideally need a parliamentary process.

The IT Rules 2021 also broadened the ambit. Earlier, it was just under the MeitY. The IT Rules 2021 brought in the Ministry of Information and Broadcasting to oversee parts of the rule that dealt with online curated content platforms and digital news platforms: Netflix, Amazon Prime and so on, digital news websites, and news aggregators.

It required creating a multi-tier, self-regulatory organisation, which would involve government oversight at the highest tier. News publishers and journalists challenged it, especially regarding the oversight of news publishers, and the court stayed certain parts of these rules. These challenges are now waiting to be heard in the Supreme Court. So, the 2021 amendments are where the issue started as the executive overreach went beyond what the IT Act empowered them to do.

Clear conflict of interest

What does the Central Government/MeitY intend to do with the IT (Amendment) Rules, 2023?

There’s some history to the amendment. Until October 2022, the due diligence requirements stated that intermediaries had to inform their users not to share, transmit, or upload certain categories of content. The October 2022 amendment changed that obligation to saying that intermediaries are expected to make “reasonable efforts” to cause the user not to do XYZ. So the responsibility of an intermediary was changed in October to actively prevent users from posting certain kinds of content. It was a significant shift in the idea of what an intermediary should or should not do.

Now, the 2023 amendments have gone further. The condition that has been added was that if any information or content has been flagged as fake, false, or misleading (I am paraphrasing here) by a fact-checking unit (which would be notified by the Union government) on content that’s about matters related to the Union government, then there’s an obligation on intermediaries to make “reasonable efforts to cause” the users not to do so. Essentially, this means that the intermediary has an obligation on them to act against this content.

It’s not the Press Information Bureau; that’s one change from the amendments stage to now. It is some fact-checking unit that will be notified. But it allows such a unit to issue a de facto takedown order, a significant change from the existing process.

Such takedown orders were issued under Section 69A of the IT Act, 2000, and the 2009 rules in the existing process. There is criticism of the rules, such as they need to be more transparent, etc. But there are checks and balances for such takedown orders. The amendment is effectively bypassing even those provisions.

The government is incentivised to say that something that shows it in a negative light or raises questions about its policies or the outcomes is fake, false, or misleading. There is a clear conflict of interest here.

Element of interpretation

The rules use the words “fake or false or misleading” to describe the content that will be fact-checked by a fact-checking unit notified by the government. Do we have definitional clarity on these words?

Often, what we’re dealing with may not even be fake. It could be something taken out of context, not even new, or just an opinion. That’s just a definitional aspect. There’s a usage aspect of it. Over time, the term has been used to dismiss views that someone doesn’t agree with.

The amendment also says “false or misleading”, which are potentially problematic. There are various types of content you cannot necessarily distill down to true versus false. Satire can be false. Opinions are not always easily or directly falsifiable because they involve an element of interpretation; two people can interpret a set of facts or the same information to draw different conclusions. This is why, in many conversations about dealing with problems in the information ecosystem, it is a more complex issue than looking at whether you can disprove something.

Highlights

• Internet Freedom Foundation (IFF), an organisation working on digital liberties, has raised concerns about IT Amendment Rules, 2023 since January when it was first proposed.
• Prateek Waghre, Policy Director of IFF, discusses the issue at length.
• The amendment is effectively bypassing checks and balances in the existing provisions, he says.

In January 2023, several digital rights and media groups criticised the manner in which MeitY proposed the amendments. Could you detail the public consultation process and why it was inadequate?

The public consultation for the “fact-checking” amendments has been problematic since the beginning in several ways. In January, a consultation process for amendment to the IT rules pertaining to online gaming intermediaries was ongoing. The process had mainly online gaming intermediaries and adjacent people paying attention to it.

However, on the evening of the last day of that consultation, MeitY introduced the new amendment on fact-checking along with a deadline extension of seven-eight days. This amendment, inserted in the due diligence requirements for the intermediaries section, had significantly broader ramifications, affecting many intermediaries and people. An extension was issued on the final day, but probably of limited value, as most stakeholders would have already scrambled to submit according to the initial deadline.

There was pushback and criticism, with several calls to withdraw these proposed amendments. Since consultation responses are no longer shared and even denied for Right to Information requests citing procedural technicalities, it is hard to say to what extent the final notification reflects the inputs and concerns of civil society organisations and the media. In response to the criticism, the Ministry stated that further consultations and meetings would be held. However, as the Editors Guild of India noted in its statement on April 7, even this does not seem to have happened.

Could you comment on the other broader process of such overreach by the Union government in recent times?

The last legislation proposed in the past six or seven months is the Draft Indian Telecommunication Bill, 2022, or the Draft Digital Personal Data Protection Bill, 2022. The way they are worded, they increase the amount of control with the Union government.

For example, the way telecommunication services have been defined in the Telecommunications Bill is so broad that it could cover any service on the Internet. And the Bill also states that you need a licence to operate telecommunications, potentially leading to a point where you know services on the Internet will need to be willing to be licensed. It could start with WhatsApp or Signal.

What does it mean when WhatsApp and Signal need a licence from the Department of Telecommunications to function? It increases the regulatory burden on them, right? Will they be denied licences if they don’t compromise end-to-end encryption?

What is being done is that the Union government has the control and the discretion to say that it will pick and choose what services it may want to license. It has also allowed itself the flexibility to expand as it chooses without any checks or balances.

That is the trend even with the Digital Personal Data Protection Bill. The actual draft Bill is short; a number of things were left to be prescribed or may be prescribed in the future. Now, for some of those, you can argue that, in some cases, you need rulemaking and that not everything can be in the parent Act. But the extent to which it has been done in this Bill effectively says that any regulatory review updates will happen through rulemaking, which does not require a parliamentary process and does not always need an extensive consultation process. It can just be notified by a direct notification—that’s the broader environment.

What is happening on the Digital India Act front?

The Digital India Act is supposed to replace the IT Act of 2000, but its contents are unclear. It covers a range of things, from what one can gather from the reporting on it—AI, blockchain, metaverse, doxxing, cyberbullying, algorithms, and so on.

Despite all this talk of the Internet needing to be made open, safe, trusted, and accountable and keeping “digital nagariks” safe, we don’t have a clear definition or articulation of harms as we perceive them in the Indian context. It is a significantly challenging endeavour. Let’s not take away from that. What you then need is to have a consultative process to determine these harms.

Yes, there are cybercrime, fraud, and disinformation issues on the Internet. There are also services that have enabled trade or helped people get their voices out. How are we balancing these benefits and the harms? What criteria are we using to make trade-offs? None of that has been articulated in any shape or form.

On the Internet, you can make only a certain amount of change. There are many problems, many issues that you’re trying to address, which are existing underlying social problems. If you look at the fact that we have a lot of hate speech on the Internet, it’s because there are existing social divisions.

The way politics plays out today, there is even, in some cases, a reward for engaging in that rhetoric. In that case, to what extent will regulating the Internet alone solve the underlying problem? It’s a challenging job, but we need to consider it at a more fundamental level.