Context: The article is discussing the possible negative impact on freedom of speech and expression online that the recent amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 would pose. It argues that the rules will make it more difficult for individuals and media outlets to criticize the government and other authorities, and that they could be used to silence dissent and curtail civil liberties. While on one side, the article criticizes the rules for having given the government too much power to regulate online speech, on the other hand, it recommends alternatives that are necessary to address concerns about the spread of misinformation, hate speech, and other harmful content online.
New Assault on India’s Liberty Background
The evolution of online speech and the need for regulating it:
- Online speech has evolved tremendously with the rise of the internet and social media platforms.
- It has given people around the world a platform to express themselves, share ideas and information, which has led to a democratization of information and communication.
- However, with the growth of online speech, there have also been concerns about the spread of misinformation, hate speech, cyberbullying, and other forms of harmful content.
- This has led to a need for regulation of online speech, to balance the rights to free expression and privacy with the need to protect individuals and society from harm.
The evolution of regulatory landscape of online speech in India:
- Section 66A of IT Act 2000: The Information Technology (IT) Act, 2000 was amended in 2009 to insert a new section, Section 66A which was said to address cases of cyber-crime.
- Section 66(A) of the Act criminalizes the sending of offensive messages through a computer or other communication devices.
- However, the Supreme Court struck down Section 66A as unconstitutional in Shreya Singhal vs Union of India, 2015 for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
- Section 69A of IT Act 2000: It confers on the Central and State governments the power to issue directions “to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource”.
- In Shreya Singhal vs Union of India, 2015 case, the Supreme Court upheld the validity of the section.
- IT (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021:
- In a bid to keep up with the issues of the social media intermediaries (SMIs), the government replaced its decade old regulations on SMIs with the IT Rules, 2021.
- IT Rules 2021 were released under section 87 of the IT Act, 2000 for Social-Media, Digital Media, and OTT platforms.
Key provisions of the IT Rules 2021 include:
- Appointment of Grievance Officer: All SMIs must appoint a Grievance Officer who will be responsible for addressing user complaints and ensuring their resolution within 15 days.
- Compliance Officer: Intermediaries with more than 50 lakh registered users are required to appoint a Compliance Officer who will be responsible for ensuring that the intermediary is complying with the IT Rules 2021.
- Content Takedown: SMIs must take down any content flagged as inappropriate within 36 hours of receiving a complaint, and must also remove content flagged by government authorities.
- Identification of First Originator: In case of any messages which could harm the interest of the country, platforms must reveal the identity of the first originator of the message.
IT Amendment Rules 2022:
- On 28th October 2022, the Ministry of Electronics, and Information Technology (“Meity”) published IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules 2022.
- Need to amend the IT Rules 2021:
- There was a need to ensure that the interests and constitutional rights of netizens are not being contravened by big tech platforms.
- There was also a need to strengthen the grievance redressal framework in the Rules, and Compliance with these should not impact early-stage Indian start-ups.
- Key features of IT Amendment Rules 2022:
- Obligations of intermediaries: The amendment requires intermediaries to respect the rights guaranteed to users under the Articles 14, 19 and 21 of the Indian Constitution, therefore, including a reasonable expectation of due diligence, privacy and transparency.
- Appeal mechanism against decisions of grievance officers: The Amendment adds that the central government will appoint Grievance Appellate Committee(s) to hear appeals against the decisions of grievance officers.
- Expeditious removal of prohibited content: The Amendment adds that complaints regarding the removal of specified prohibited content must be addressed within 72 hours.
- Key concerns with IT Amendment Rules, 2022:
- A government-appointed censorship body: The creation of a Grievance Appellate Committee (GAC) makes the Union Government the arbiter of permissible speech on the internet, potentially incentivizing suppression of speech unpalatable to the government.
- Legislative uncertainty: The IT Amendment Rules empower the government to censor speech on grounds not stated in the IT Act or the Constitution, and the GAC itself has no legal basis.
- Lack of operational transparency: The absence of details on the functioning of the GAC and its methods of choosing appeals for review raises doubts about its independence and transparency.
- Definitional vagueness: Several grounds mentioned in Rule 3(1)(b) remain undefined, making them vague, impossible to implement consistently, prone to misuse, and potentially leading to arbitrary censorship.
Draft IT Amendment Rules 2023:
- Recently, the Ministry of Electronics and IT notified amendments to the Information Technology Rules, 2021, which allows the Ministry to appoint the fact-check body.
- Key provisions of the amendment rules:
- Appointment of Fact-check Unit: The Central Government will allow a fact-check body appointed by it to label online content related to the Union Government as “fake” or “misleading”.
- Removal of Fake Content: If any piece of information is marked as fake by the upcoming fact check unit, online intermediaries will be required to take it down. Internet service providers will have to block URLs of such content.
- If online intermediaries fail to remove such content, they would risk losing their safe harbour, which protects them from litigation against third-party content.
- Efforts to Reduce Fake Content: Online intermediaries and internet service providers should make “reasonable efforts” to not host content related to the Central Government that is “identified as fake or misleading” by the fact check unit.
- Framework on Online Gaming: Online intermediaries should make reasonable efforts to not host, publish or share any online game that can cause the user harm, or that has not been permitted by an online gaming self-regulatory body designated by the Central Government.
- The intermediary will also have to ensure that no advertisement or promotion of an online game that is not a permissible online game, is hosted on its platform.
- The amended rules also cast additional obligations on online gaming intermediaries in relation to online games involving real money.
- The Government may create a Board of Directors representing the online gaming industry. It shall have experts, including online games users, educationists, psychology or mental health experts, ICT experts etc.
- Significance of the new amendment rules:
- More Diligence: They enforce greater diligence by online gaming and social media intermediaries in respect of online games and fake or false misleading information related to Government business.
- Facilitate Gaming Industry: The Indian online gaming ecosystem will grow into a multi-billion-dollar industry and be an important catalyst to India’s One trillion-dollar Digital economy goal by 2025-26.
- Policy Framework for Gaming Startups: Online gaming startups and innovation are being powered by young Indians across the country and these rules will provide clarity and certainty in terms of policy framework for them.
Decoding the Editorial
The article discusses the new amendment made to the IT Rules, 2021 which was introduced by the Union government on April 6, 2023 which gives the Union Ministry of Electronics and Information Technology (MeitY) the power to create a “fact check unit” to identify false or misleading online content related to the central government’s business. It criticizes the new rules for:
- No “safe harbor” immunity: If social media intermediaries fail to prevent users from hosting or publishing such false or misleading content, they will lose their “safe harbor” immunity. This means that they will no longer be protected from criminal prosecution for the content posted on their platforms.
- Government to crack down fake news: Essentially, the amendment aims to crack down on fake news and misinformation on the internet in India, particularly related to the central government’s business.
- The Government now has the authority to determine what is “bogus” or false information and can use this power to censor online content.
- Against Constitutional Values: The new regulation is deeply problematic and goes against the principles of free information and free expression.
- Censorship of Press: The Editors Guilds of India has stated that these amendments will have deeply adverse implications for press freedom in the country. The determination of fake news in the sole hands of the government will result in censorship of the press.
- More Power to Fact Checking Unit: New rules may make it easier to muzzle the free press, and will give sweeping powers to the agency authorized by the Central Government for fact checking, to force online intermediaries to take down content that the government may find problematic.
- Curb Legitimate Criticism: New amendments stifle legitimate criticism of the government and will have an adverse impact on the ability of the press to hold governments to account, which is a vital role it plays in a democracy.
- Lack of Governing mechanisms: New rules do not mention any governing mechanism for a fact-checking unit, the judicial oversight, the right to appeal, or adherence to the guidelines laid down by the Supreme Court of India.
- Combating False Information: The best way to combat false information is through open discussion and education, not censorship. However, this approach may not always be effective in addressing structural inequalities in society, and that speech can sometimes be harmful.
- Abiding by Constitutional Virtues: The IT Rules, which seek to address the problem of misinformation on the internet, impose restrictions not through legislation but through executive diktats, which go against the constitutional guarantees of freedom of speech and expression.
- The Constitution of India grants every citizen the right to freedom of speech and expression under Article 19(1)(a), which can only be limited through reasonable restrictions made by law on certain grounds specified in Article 19(2), such as the interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.
- Framing a Comprehensive Law: The article suggests that any effective and constitutionally sound effort to combat fake news should start with the creation of a comprehensive law by Parliament, which would set limitations on free speech according to the grounds listed in Article 19(2).
- Such a law would also ensure that the government could not act as a judge in its own cause.
- Example: The example of France, where legislation exists to prevent the spread of misinformation during elections, is cited as a model. Here, an independent judge makes the determination of whether information is false or not, rather than the government.