Constitutional questions against unconstitutional Rules

In light of concerns about the Information Technology Rules, 2021, we wrote to the Standing Committee on IT, detailing issues and recommendations we have and asking the Committee to put the same before the representatives of the ministries.

Tl;dr

The Standing Committee on IT will conducting meetings with representatives from the Ministry of Information and Broadcasting and the Ministry of Electronics and Information Technology. In light of concerns about the Information Technology Rules, 2021, we wrote to the Committee, detailing the list of issues and recommendations we have and asking the Committee to put the same before the representatives of the ministries.

Background

The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 were notified on February 25th, 2021. The Rules lay down a new and stringent framework for the regulation of online content. Though categorised as ‘soft-touch’, the Rules contain provisions that range from the claustrophobic to the downright stifling, with several implications for free speech, journalistic freedom, and artistic creativity. That these Rules have been notified in the aftermath of the debacle involving Twitter and the Government of India has only exacerbated concerns that they are an attempt to clamp down on dissent. We have written extensively about the Rules before through our deep dive into the Rules as well as our more historical and contextual analysis. We have also provided an explainer on the Self-regulatory Code of the Internet and Mobile Association of India to provide an instance of how self-censorship would work under the Rules.

The deleterious effects of these Rules can already be seen: two journalists from Manipur, who have been hounded for their work by the police before, were served a notice under the new Rules, asking them to furnish details attesting to their compliance with the new Rules. Though the notice was subsequently retracted, this incident may be a precursor to future such events in which journalists are intimidated and harangued in such a manner. Meanwhile, self-regulation has already given way to self-censorship for OTT platforms, with on-demand video streaming platforms already exercising caution and discretion. Several completed TV shows and movies have already been cancelled for fear of government censure.

Now, the list of subjects under consideration of the Committee includes both ‘Citizens data security and privacy' and ‘Ethical standards in media coverage’, two subjects which will be directly impacted by these Rules. Additionally, the agenda for the Committee lists upcoming meetings with representatives of the Ministry of Information and Broadcasting and the Ministry of Electronics and Information Technology, on the issues of ‘Review of functioning of Central Board of Film Certification (CBFC)’ and ‘Review of Cyber Security Scenario in India’. Thus, through the letter, we wanted to provide the Committee with an illustrative list of concerns and questions that may be put before the representatives of the Ministries. We describe these issues and the recommendations thereof  in detail below.

Provisions and Issues

The Rules consist of three parts. Part I of the Rules is preliminary and provides definitions. Part II empowers the Government to exercise control over intermediaries such as Facebook, Twitter, Google and Whatsapp. Lastly, Part III regulates publishers of news and current affairs (“Digital News Media”) and publishers of online curated content (“OTT platforms”).

We believe that the Government should not have notified these far-reaching rules without parliamentary approval and the Rules should have been placed before the Hon’ble Parliamentary Standing Committee on Information Technology. In law, a rule-making authority must not traverse beyond the powers conferred by the Parliament. In this case, the Central Government has notified the Rules under Section 87 of the Information Technology Act, 2000 which does not permit the Central Government to regulate Digital News Media and OTT Platforms.

While, in general we do not dispute the need to regulate the internet, the Rules raise grave civil liberty concerns. Part II of the Rules has serious implications on the freedom of speech and expression and the right to privacy of users of the internet:

• Rules 3(1)(b) and 3(1)(c) permit social media intermediaries (such as Facebook) to decide whether any content uploaded by a user violates any law in force and if it does, the entity can terminate the access or usage rights of the user. This enables private entities such as Facebook, to be an arbiter of permissible speech and is in violation of the directions of the Hon’ble Supreme Court in Shreya Singhal vs Union of India. In that case, the Court held that intermediaries cannot decide permissibility of any content without an order of a court or an order by the Government.
• Rule 3(2) requires social media intermediaries to establish a grievance redressal mechanism by which users may complain against any content and a grievance officer has to dispose of such complaints within 15 days. An empirical study conducted by the Centre for Internet Society points out that intermediaries tend to over-comply with such takedown requests to limit their liability and this has a chilling effect on free speech and expression of all users.
• Rule 4(2) requires significant social media intermediaries which provide messaging services (such as Whatsapp) to enable identification of the “first originator” of a message. To implement this rule, entities will have to “fingerprint” each message and this may defeat end-to-end encryption. As a consequence, privacy of every user will be compromised to investigate crimes committed by a miniscule-minority.
• Rule 4(4) requires significant social media intermediaries to develop automated tools to censor content. While the efficacy of such tools is itself doubtful, intermediaries will collect large amounts of data of users to develop these tools in violation of the Right to Privacy of users.

Part III of the Rules has serious implications on freedom of speech and expression of Digital News Media and OTT Platforms, and the right of citizens to have access to information:

• The Rules establish a Code of Ethics which is enforced by an Inter-Departmental Committee which consists only of officers of the Government. The Inter-Departmental Committee may recommend the Ministry of Information and Broadcasting to block, delete or modify content published by Digital News Media and OTT platforms. Thus, the Central Government is now the sole arbiter of permissible speech. This affects the publisher’s Fundamental Right to Expression and the citizen’s right to access differing points of view because publishers will be compelled to only produce content which is palatable to the Central Government
• Notably, Rule 14(1)(b) r/w Rule 14(1)(6) permits the Ministry of Information and Broadcasting to refer complaints to an Inter-Departmental Committee and also decide upon those complaints after taking into consideration the recommendations of the Inter-Departmental Committee. This is arbitrary as the Ministry of Information and Broadcasting becomes a ‘judge in its own cause’, and has a chilling effect on speech of the publishers.
• The Code of Ethics mandates OTT Platforms to “take into consideration India’s multi-racial and multi-religious context” and exercise “due caution” when portraying any racial or religious group. If they do not exercise “due caution” their content may be blocked by the Inter-Departmental Committee. This obligation on OTT Platforms is vague and has a “chilling effect” because vague laws by their very nature, are overbroad and cover within their ambit both unlawful and legitimate speech.

What can be done?

The above mentioned issues deserve further scrutiny, and so we request firstly that these Rules be denotified and put through the public consultation process in line with the Pre-Legislative Consultation Policy adopted on February 5th, 2014. Given the significant and wide-ranging implications of these Rules, we believe the government must first publish a white paper underlining the government’s intent with respect to intermediary liability and online content regulation. To this extent, we believe the Ministry of Electronics and Information Technology must revive the erstwhile Cyber Regulations Advisory Committee under Section 88 of the Information Technology Act, 2000. Furthermore, we request that the Committee contain an adequate amount of representation from experts, academics, technologists and civil society organisations. We stress this aspect only because earlier constitutions of the committee witnessed low amounts of participation from the aforementioned groups.

We further ask that any future version of the Rules substantially engage with the recommendations put forth by the Standing Committee on Subordinate Legislation’s report on the The Information Technology (Intermediaries Guidelines) Rules, 2011, which too had recommended making the Cyber Regulation Advisory Committee functional again. These recommendation also included:

• Removing any definitional vagueness to prevent misuse
• Providing procedural safeguards for content takedown orders
• Such provisions would provide a basic level of operational transparency, and as such constitute a minimum requirement for any forthcoming regulatory framework.

The regulatory paradigm for digital news media and OTT platforms has also raised grave cause for concern. We believe that here that the first point of departure must be the principles laid down in the report  of the Ministry of Information and Broadcasting’s Report of the Committee of Experts chaired by Shyam Benegal that recommended broad guidelines/procedures for certification of films by the central board of film certification. The report of the Ministry of Information and Broadcasting’s Expert Committee on Film Certification recommended a more liberalised regime even for film certification, arguing that the Central Board of Film Certification should not act as a ‘moral compass’, and instead limit itself purely to certification (and not dictate modifications and withdrawals).

The committee also stated that film viewing is a consensual act, and so regulation should limit itself to a statutory warning, noting that the artistic expression and creative freedom of filmmakers should be protected and any certification should be responsive to social change. Such arguments apply even more to the realm of online content, where the viewer directly chooses the content they wish to consume. Thus, we believe that the Ministry must put the findings of the Committee of the public consultation process, and ensure that its recommendations are implemented in the next version of the Rules.

Important Documents

1. IFF's letter to the Standing Committee regarding the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (link)
2. The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021 (link)
3. Latest Draft Intermediary Rules: Fixing big tech, by breaking our digital rights? dated February 25th, 2021 (link)
4. Deep dive : How the intermediaries rules are anti-democratic and unconstitutional dated February 27th, 2021 (link)
5. Coming to streaming services near you: Self-censorship! dated March 4th, 2021 (link)