In view of the grave concern voiced by the Editors Guild of India, former President of Press Club of India and other experts on the recent amendment to the IT Rules, Mohd Naushad Khan writes that under the revised IT rules the right to challenge established norms, speaking truth to power, and maintaining civil rights would all be weakened.
The right to challenge established norms, speaking truth to power, and maintaining civil rights, it is presumed, would all be weakened under the revised IT Rules. To combat false information on the Internet, the Union Government unveiled a new set of regulations on April 6, 2023. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, sometimes known as the IT Rules, were amended to include these regulations.
The amendment gives the Union Ministry of Electronics and Information Technology (MeitY) unrestricted authority to establish a “fact check unit” that will find incorrect or deceptive internet information that in any way relates to the operations of the central government. Social media intermediaries risk losing their “safe harbour” protection if they don’t stop users from hosting or posting information that has been marked as fraudulent by the fact-checking unit. In other words, any immunity that online platforms may have had from prosecution will be eliminated.
The consequence of the new regulation is that the Union Government gets to decide for itself what information is bogus and gets to exercise wide-ranging powers of censorship by compelling intermediaries to take down posts deemed fake or false. 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. This is the second amendment to the original IT Rules notified in February 2021, which was earlier amended on October 28, 2022.
According to Gautam Lahiri, former president of the Press Club of India, “First of all there is no transparency on the merit of the bill. Whatever has been said is only from sources of the government. The Government should publicise the content of the bill for wider consultation. A concept paper of the bill was to be published last year. But nothing is in public domain, creating a lot of confusion. According to sources, the bill is aimed at regulating the social media, thereby putting a kind of censorship on the content as disliked by the government of the day. Who will decide the facts of social media is not clear.”
The Ex-PCI President added, “According to the government, after two decades of internet space there is no regulation on the social media house,which may spread threat to national security, etc. Their argument is to control online fraud and gambling it is required; at the same time OTT platform would also be regulated. I think regulator should be an independent body of experts, not the body recommended by the government.”
The Editors Guild of India (EGI), in a letter to the Prime Minister – which was also addressed to Union Law and Justice Minister Ravi Shankar Prasad and Union Information and Broadcasting Minister Prakash Javadekar, has urged the Government to put in abeyance the new digital media rules and criticised the three-tier mechanism to enforce the code of ethics, saying it was regressive and against the freedom of the press.
“Part III of the Rules mandates that digital news media establish a self-regulating mechanism to resolve grievances raised by any person and empowers the government to delete, modify and block content published by digital news media. We are conscious of the challenges posed by the digital age, and as such, we recognise the need for self-regulation of digital news media. However, we have grave concerns regarding the rules, which can fundamentally alter how news publishers operate over the Internet and undermine the freedom of the press in the country,” the EGI said in its letter to Prime Minister of India.
“The concern here is the absolute decision-making power conferred upon the executive, which will inhibit digital news media and thereby press at large from fulfilling its obligations as the Fourth Estate. The Guild urges the ministry to withdraw such an onerous and regressive regulatory mechanism, and to initiate consultations for putting in place a more equitable self-regulatory system,” the letter further said.
Under the new rules it is said that anyone can file a grievance and the publisher will have to respond within 15 days of receiving it. “This again will be averse to press freedom. The rules should have been accompanied by a form containing the details which the complainant should be obligated to furnish, to lodge a complaint. As of now, the publishers may have to spend resources to respond to incomplete, ill-intentioned and even anonymous complaints,” it said.
Article 14 of the Constitution guarantees Equality before Law: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India,” and ensures “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.” And, Article 19 deals with the protection of certain rights of the Indian citizens regarding freedom of speech and others like the right to practise any profession, or to carry on any occupation, trade or business. And also, Article 21 says, “Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law.”
According to Dr. Narender Nagarwal, Faculty of Law, Delhi University, “The newly introduced amendments under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 on October 28, 2022 released by the Ministry of Electronics and IT, has raised concern among civil rights activists and legal fraternity. The latest amendments are being understood a vicious attempt to regulate the content of social media that are pretty critical towards the government.”
On the concern of new IT rules, Dr.Nagarwal said, “The government has represented the whole exercise aiming to strengthen the grievances mechanism of all social media intermediaries (SMIs) but ostensibly the dark side of the amendment is to detect users and content creators who are pretty critical towards the government policies and exposing their falsehood through different social media platforms. According to latest amendment in IT Rules, 2021, all social media platforms are required to appoint resident grievance officers with a base in India as part of their due diligence as SMIs who are protected from liability for third-party content on their platform.
“Ostensibly such interreference violates the basic philosophy of freedom of speech and expression as enshrined under Articles 19, 14 and 21 of the Constitution of India. The term “reasonable efforts” as mentioned in the rules suggests that the content which is “objectionable or prohibited content” can be removed by the SMI but no definition of what signify the “reasonable efforts”. Interestingly, the new rules didn’t address the issue of poisonous propaganda, hate speech and trolling against the prominent faces of media and civil society and their hateful content still continuing without any obstacles.”
On the use and misuse of the new rules, Nagarwalobserved, “A new bureaucracy has been proposed in the new IT Rules in the name of Grievance Appellate Committee and the same may function under the state. It appears that this grievance system has been developed to give safe passage to paid trolls and ignore the legitimate complaints of the users. The timebound framework of resolution of complaint doesn’t mention whether the complainant is satisfied with the resolution or not. If the complainant is not satisfied with the resolution, he can’t approach the higher authorities and only remedy available to him is judiciary.”
On the transparency regarding implementation of the new rule, Dr.Nagarwalaverred, “The presiding officers of appellate committees are to be from government, thus how can you expect justice will be done to the users. The chief concern of this ambitious amendment is without any legal authority the State seeks to regulate the content of social media and to the direct scrutiny of the government. Though the government has set up a separate bureaucracy by permitting users to appeal decisions of the SMI but how far the appellate body remains neutral is the core issue and whether the appellate body can function independently. In a simple language, the amendment is nothing but re-establishment of the prerogative of state to reverse, review and moderate the social media content, and grievance appellate body decision shall be final until the court intervenes.”