IN a wide-ranging move aimed at controlling content on the Internet, the Ministries of Electronics and Information Technology and Information and Broadcasting issued the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, that purport to regulate digital media, social media and over the top (OTT) platforms. They have done this on the pretext of providing an institutional mechanism to check misuse and abuse of the freedom of speech on social media and ensuring “responsible freedom” of the media. The rules supersede the Information Technology (Intermediary Guidelines) Rules issued in 2011.
While the “overall architecture” of the new rules is designed to be under the IT Ministry, the I&B Ministry will regulate digital media and OTT platforms. In a Press Information Bureau (PIB) release on February 25, the government said that the rules had been issued after “elaborate consultation with the public and stakeholders”. The rules, it said, are aimed at addressing concerns about the “lack of transparency, accountability and rights of users related to digital media.”
According to the government, ordinary users of social media and OTT platforms did not have a robust complaint mechanism where they could register their complaints and get them redressed within a defined timeline.
The release said: “Lack of transparency and absence of robust grievance redressal mechanism have left the users totally dependent on the whims and fancies of social media platforms. Often, it has been seen that a user who has spent his time, energy and money in developing a social media profile is left with no remedies in case that profile is restricted or removed by the platform without giving any opportunity to be heard.”
In the PIB release, the government said that India was the “world’s largest Internet society” and that the government welcomed social media companies to “operate in India, do business and also earn profits. However, they will have to be accountable to the Constitution and laws of India”.
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It also said that these social platforms had enabled ordinary Indians to express their creativity, ask questions, be informed and freely share their views, including criticism of the government and its functionaries.
The release said: “The government acknowledges and respects the right of every Indian to criticise and disagree as an essential element of democracy.” But, it added, the “proliferation of social media on one hand empowers the citizens and on the other hand gives rise to some serious concerns and consequences which have grown manifold in recent years”.
According to the PIB release, these concerns were “raised from time to time in various forums including Parliament and its committees, judicial orders and in civil society deliberations in different parts of country. Such concerns are also raised all over the world and…. [are] becoming an international issue.”
The government held that “of late, some very disturbing developments” were observed on the social media platforms. It said that the “persistent spread of fake news” had compelled many media platforms to create fact-checking mechanisms.
The release said that other disturbing developments included the rampant abuse of social media where morphed images of women were shared and content related to revenge porn threatened the dignity of women. Misuse of social media for settling corporate rivalries in blatantly unethical manner had become a major concern for businesses, and there was a rise in the use of abusive language, defamatory and obscene content and blatant disrespect to religious sentiments through platforms, it said in the release.
Besides, it said: “Over the years, the increasing instances of misuse of social media by criminals and anti-national elements have brought new challenges for law enforcement agencies. These include inducement for recruitment of terrorists, circulation of obscene content, spread of disharmony, financial frauds, incitement of violence, public order, etc.”
It is not clear to what extent the government had consulted the public and stakeholders, as the government itself admitted that no one knew the extent and number of digital news media outlets. But what is apparent was that the two Ministries had definitely held consultations amongst themselves to, according to the PIB release, formulate a “harmonious, soft-touch oversight mechanism in relation to social media platforms and digital media and OTT platforms”.
Also, the government claimed that the consultative process was as robust as possible. It put up a draft on December 24, 2018, on the Meity.gov.in Web site and invited comments from the public. Some 171 comments and 80 counter-replies to those comments were received.
DIGIPUB, an association of digital publications of news and current affairs representing the largest collection of digital news publishers in the country, while broadly welcoming the need to self-regulate, expressed its disagreement with the process and with certain features in the Rules that allowed the government to block or remove content.
Currently, the power to block content is present in Section 69A of the IT Act, but it is subject to constitutional safeguards. This power is not applicable either to print or electronic media as they are governed by the Press Council of India and organisations such as the News Broadcasters Services Association.
Digital publications’ disagreement
DIGIPUB also pointed out that “a publication relating to current affairs” not only represented the author’s or publisher’s right to freedom of expression under Article 19 of the Constitution but also the right of the citizen to be informed and to access different viewpoints. It said that it had written to the I&B Ministry on December 2, 2020, for a consultation but did not receive any reply.
The government said that the new rules empowered users with a mechanism to redress grievances pertaining to child pornography, gang rape and rape imagery videos on websites and content hosting platforms and applications, misuse of social media and fake news.
The issuance of the new rules seems to have been precipitated by a Supreme Court order of September 2019 in a suo motu writ petition known as the Prajwala case, a Calling Attention Motion in the Rajya Sabha and the concerns expresses by an ad hoc committee of the Rajya Sabha.
The ad hoc committee had “studied the alarming issue of child pornography in India and its effects on children and society” and had recommended enabling the identification of the first originator of the content. There is no dispute about the concerns, especially those relating to images of child pornography, rape or gang rape. The problem arises because the rules are not confined to controlling child pornography but are aimed at regulating all content based on the subjective perceptions of all “users”.
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In the new rules, an ‘intermediary’ refers to websites, apps, blogs, portals of social media networks, media sharing websites, online discussion forums and “other such functionally similar intermediaries”. An entire list of do’s and don’ts has been drawn up for these intermediaries as part of the rules and regulations for their users.
Users will now be informed not to “host, display, upload, modify, publish, transmit, store, update or share any information that was defamatory, obscene, pornographic, pedophilic, insulting or harassing on basis of gender, racially or ethnically objectionable, harmful to minors” and information that “threatens the unity and integrity, defence, security or sovereignty of India, friendly relations with States, or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any foreign states”.
If such information is hosted, stored or published, it will have to be removed within 36 hours after being notified either by a court order or a government agency.
‘First originator’
Very broadly, under the new rules, all intermediaries, including social media intermediaries, are expected to observe “due diligence”, failing which they will lose the provisions of a safe harbour under the IT Act. These provisions grant conditional immunity to intermediaries from liability for third-party acts. “Due diligence” in this case includes appointing mechanisms to redress grievances and a Grievance Redress Officer to receive complaints from any user and ensure resolution of a grievance within 15 days of the receipt of the complaint. For the protection of the dignity of women users, the intermediaries are required to remove or disable access to objectionable content within 24 hours of receipt of a complaint from either the victim or a third party.
The rules make a distinction between ordinary social media intermediaries and “significant” social media intermediaries (those with a large user base). The “significant” intermediaries are supposed to appoint a Chief Compliance Officer, a Nodal Contact person who would be in touch with enforcement agencies and a Resident Grievance Officer, and publish a monthly report on the grievances received and the action taken.
Insidious provision
But these are the more innocuous components of the rules. The insidious part comes in requiring intermediaries to disclose the “first originator” of information “only for prevention, detection, investigation and prosecution of an offence related to the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order or of incitement to an offence relating to the above or in relation with rape, sexually explicit material or child sexual abuse material punishable with imprisonment for a term not less than five years”.
On the other hand, the intermediary is not required to share any information or message with the first originator, whose rights are not protected. However, all users enjoy the right to dispute the intermediary if the latter removes or disables any information on its own accord.
The rate at which people have been filing complaints against journalists and activists invoking the law of sedition and the police have been registering first information reports (FIRs) indicates that the perception of what threatens the security of the state or what is construed as an offence against public order is an area open to wide interpretation by the public and contains potential for misuse by agencies.
The government is also seeking to rein in digital media and OTT platforms. It claimed that consultations were held in “Delhi, Mumbai and Chennai” and the OTT platforms were told to evolve a self-regulation mechanism. Since they did not do so, as I&B Minister Prakash Javadekar said during a media briefing on February 25, the government felt compelled to step in.
Ravi Shankar Prasad, the Minister for IT and Communications, also said that there should not be any double standards. “When Capitol Hill is attacked, social media supports police action; but when there is an aggressive attack on the Red Fort, a symbol of India’s freedom and where the PM unfurls the national flag, there shouldn’t be any double standards,” he said.
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He said the Supreme Court had ruled that the Internet was not a fundamental right and that freedom of speech and expression was a fundamental right subject to reasonable restrictions under Article 19(2) of the Constitution.
In reply to a question on consultations, Prakash Javadekar said that the government did not know the total number of digital news portals and that it would know only after they disclosed their details. “Our doors are open to them,” he said.
The signs of such rules being formulated were apparent given the government’s frequent run-ins with social media platforms like Twitter in the context of the farmers’ protest. More and more individuals and organisations were seen expressing their discontent and disagreement with the policies of the government. In a healthy democracy, all this should have been par for the course. Yet, on many occasions, cases were filed against persons for tweeting what was perceived as anti-national or on charges such as inciting hatred between communities.
In the context of the farmers’ protest, the government did not take kindly to persons using social media platforms to critique the farm laws and, as a consequence, the government. At least six individuals, including a Member of Parliament from the opposition, were booked for sedition for posting tweets relating to a farmer’s death. Although some of those individuals withdrew their tweets, cases were registered.
Twitter was asked to suspend some 500 accounts, including those belonging to a news magazine. It restored several of these accounts after finding that the suspension ran contrary to its own policy of free speech and expression and to the guarantees under the Constitution.
Dissent as offence
The Enforcement Directorate conducted random raids on the office and homes of people working in Newsclick, an online news media outfit. The raids lasted for almost 110 hours. Newsclick, a known critic of the government, was asked to explain its source of funding. Newsclick said that it had nothing to hide and gave the explanation sought from it. Stories were systematically leaked to sections of the mainstream and government-friendly online media for a few days. Several mediapersons and journalists’ organisations protested against the raids, describing them as a ploy to intimidate the media.
Prior to this, the government ordered an OTT platform to delete certain scenes of a web series after viewers complained that they were derisive of Hindu gods and goddesses. Cases were registered against the producer of the series. The scenes were eventually deleted.
It would not be incorrect to say that the new Rules were in the offing; what was unexpected was the way they were bulldozed through by the fiat of an executive order without any consultation with the stakeholders.
According to the government, social media intermediaries are no longer limited to playing the role of a pure intermediary and often become publishers. It also stated that the new rules were “a fine blend of liberal touch with gentle self-regulatory framework. It works on the existing laws and statues of the country which are applicable to content whether online or offline”.
All that it had done, it said, was to propose a level playing field. News and current affairs publishers are expected to follow the journalistic code of conduct of the Press Council of India and the Programme Code under the Cable Television Network Act, which are already applicable to print and television channels.
Publishers of online media are required to set up a six-member committee for self-regulation, whose broad composition will be decided by the government ,and register it with the I&B Ministry. Apart from this, a government oversight committee in the form of an inter-departmental committee will watch over the media.
The I&B Ministry will publish a charter for the self-regulating bodies including a Code of Practices. With much of the regulation envisaged by the government, the scope for self-regulation seems limited.
Clearly, there is more to the new rules than meets the eye. According to estimates compiled by the government, there are around 53 crore WhatsApp users, 44.8 crore YouTube users, 41 crore Facebook users, 21 crore Instagram users and 1.75 crore Twitter users.
The press note itself was proof that the government had acted in a knee-jerk fashion, obsessed with the sole objective of reining in opinions and thought processes it perceives as inimical to its political interests. The timing was also intriguing, coming as it did in the wake of the ongoing farmers’ protests, which had gained a lot of traction and attention internationally as well.
When the climate activist Greta Thunberg tweeted about a protest tool kit, it raised the hackles of the Bharatiya Janata Party (BJP) leadership.
When young climate activists in India did the same, they were booked under sedition and other clauses of the Indian Penal Code. The courts miraculously came to the rescue, granting bail and broadly ruling that dissent cannot be sedition. Media observers have expressed the concern that the new Rules may encourage “proxy grievances”. According to the Internet Freedom Foundation (IFF), an organisation that works for Net neutrality, privacy, free expression and innovation, the Rules have the potential to fundamentally change how the Internet is accessed and used by millions of users across India.
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The IFF said that the Rules were just a ploy to regulate OTT platforms and online media by proxy, apart from being “grossly unconstitutional.”
The IFF has said that the vague definition of “publisher of news and current affairs content” would discriminate against small and independent media that often use the Internet to disseminate news and content as opposed to the legacy media.
It said that social media intermediaries such as WhatsApp, Signal or Telegram would now have to disclose the identity of the “originator” of the “objectionable post” or message, which means that end-to-end encryption provided until now would have to be violated. As of now, end-to-end encryption keeps the identity of the person confidential.
The IT Act already provides encryption standards and methods. In 2009, there was a Home Ministry notification that gave powers to the government to demand “decryption”.
The new Rules also failed to take into account the possibility of the originators of the information having no control over the forwarding of the messages or altering of the original message and could finally be framed for something that they did not do.
It has been argued that the restrictions on the freedom of expression must be demonstrably necessary to the interests enumerated in Article 19(2) and must be reasonable, fair and just. The scope of restrictions on such freedoms can be wide if a government is too sensitive to criticism and construes every such expression of dissent as seditious.
