On January 17, 2023, the Ministry of Electronics and Information Technology (MeitY) has proposed yet another amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021). These amendments dated 17.01.2023 to the IT Rules, 2021 (Proposed Amendments) seek to introduce a new category for the take down of social media content and news media content, i.e. any information that has been identified as ‘fake’ or ‘false’ by the Press Information Bureau (PIB), or any other agency of the Union Government, to which the news story relates. This will heavily impact the freedom of speech, expression and information online, and will make the Union Government the final arbiter of what news may be published and what must be removed.
Why should you care?
The IT Rules, 2021 significantly increased government control over social media intermediaries, digital news media platforms and OTT platforms. Now, MeitY has proposed amendments to the IT Rules, 2021 which may require intermediaries to block access to social media posts and even news stories themselves, if the PIB terms them as “fake” or “false”. This kind of control is eminently prone to misuse and may significantly accelerate the trend towards censorship of the Indian internet.
The IT Rules, 2021 were issued jointly by MeitY and the Ministry of Information and Broadcasting (MIB) to increase government oversight over India’s internet usage. Part II of the Rules deals with the regulation of intermediaries, including social media intermediaries. Social media intermediaries include messaging-related intermediaries, such as WhatsApp, Signal and Telegram, and media-related intermediaries, such as Facebook, Instagram and Twitter. This part is administered by MeitY. Part III deals with the regulation of digital news media and OTT platforms, such as Netflix, Amazon Prime and Disney+Hotstar. Part III is administered by the MIB.
The IT Rules, 2021, whose legality is contentious, undermines the fundamental right to freedom of speech and expression and privacy for millions of internet users in India. The IT Rules, 2021 have been unequivocally criticised by experts, civil society, digital rights groups, industry bodies, technology companies, technical groups, members of the press, and even by Special Rapporteurs from the United Nations who called these rules incompatible with “international law and standards related to the right to privacy and to freedom of opinion and expression” and sought their withdrawal.
At least 17 Petitioners have challenged the constitutionality of the IT Rules, 2021, including LiveLaw Media Pvt. Ltd. before the Kerala High Court and Mr. T.M. Krishna before the Madras High Court. The Kerala provided interim protection to LiveLaw against coercive orders by the State under these Rules, and the Madras High Court has stayed Rules 9(1) and 9(3) of the IT Rules, 2021 while observing that the oversight mechanism in the Rules may “rob the media of its independence”.
Nevertheless, Amendments continue
Despite this, MeitY has continued to expand its powers under these IT Rules, 2021. On October 28, 2022, MeitY notified certain Amendments as a result of which, the compliance burden on intermediaries, and as an extension the risk to their safe harbour protections, has increased. Further, MeitY has introduced an additional layer of censorship, wherein government-appointed committees, called the Grievance Appellate Committees, will have a say in what content stays up on the internet, and what doesn’t.
Recently, MeitY proposed a second round of amendments, this time to bring gaming platforms specifically under their ambit. On January 2, 2023, MeitY proposed further amendments to the IT Rules, 2021 in relation to online gaming, introducing due diligence and KYC requirements under a new Rule 4A to be observed by online gaming intermediaries, which will operate in addition to the ones already observed under the existing Rule 3. This KYC procedure is required, under the proposed Rule 4A(d), to be the same as the procedure required of an entity regulated by the Reserve Bank of India. These amendments were open for public feedback till January 17, 2023.
This is despite operational stay orders against various provisions of the IT Rules, 2021 (mainly under Part III thereof). Recognising the threat posed by Part III of the IT Rules, 2021, the Bombay High Court ordered a stay on the operative provisions of Part III, in August 2021. In September 2021, the Madras High Court agreed that the IT Rules, 2021 may threaten the independence of the media, and also that “Article 19 (1) (a) of the Constitution may be infringed in how the Rules may be coercively applied to intermediaries.”. A transfer petition has been filed in the Supreme Court, and the Supreme Court is considering whether to club all the various challenges and hear them together, though the stay orders issued by the High Courts against the operation of the IT Rules, 2021 have not been disturbed.
The Proposed Amendments let government decide which news can stay online
On January 17, 2023, MeitY extended the deadline for comments on amendments proposed on January 2, 2023. But, the Proposed Amendments also represent a significant change in scope. Theyincorporate changes to Rule 3(1)(b)(v) under Part II of the IT Rules, 2021 which coverdue diligence requirements and grievance redressal mechanisms for intermediaries) The updated sub-clause may make it necessary for intermediaries to take down content that has been ‘fact-checked’ by the Union government.
According to the Proposed Amendments, the Press Information Bureau (PIB) will have the power to declare any information (most typically news information) as ‘fake’ or ‘false’. At which point intermediaries, including social media intermediaries (Facebook, Twitter etc.) and also ISPs (Airtel, ACT, Jio etc.) will be required to “make reasonable efforts to cause the user […] not to host, display, […], publish, transmit [...] or share” such information or news. This could effectively act as a take down order to social media platforms and ISPs by the PIB, or any other Union Government agency to which the relevant news story relates.
It is worth noting that this provision does not apply directly to news websites, as they are not classified as intermediaries. The Proposed Amendments mean that the PIB (or any other notified department) can bypass natural justice principles and order takedowns of the information through the intermediaries, as is currently the practice under the regime of Section 69A of the Information Technology Act, 2000 (IT Act). Under the procedures used by MeitY in ordering Section 69A takedowns, the originators and creators of information are not even provided a notice, or a hearing, or even a copy of the blocking order issued in respect of their URLs, before or after they are censored.
Proposed Amendments may be unconstitutional
As the Proposed Amendments impact the publication and dissemination of news information, it has a direct impact on the fundamental right to speech and expression of news publishers. This impacts readers of news as well, since the right to receive information and knowledge has been considered to be a part of the right to free speech and expression by the Supreme Court of India, and is also accepted internationally under the International Covenant on Civil and Political Rights (ICCPR).
The will operate as content take-down and censorship by agencies which are not currently statutorily empowered to take-down online content or news. Nor can this power be created by executive orders or Rules framed by MeitY. Further, the Proposed Amendments create an entirely new procedure for internet censorship than what is statutorily prescribed under Section 69A of the IT Act, which empowers MeitY to order the take down of content in certain enumerated and specific conditions. Section 69A empowers MeitY to take down online content only when it is necessary or expedient in the interest of (i) sovereignty and integrity of India, (ii) defence of India, (iii) security of the State, (iv) friendly relations with foreign States; (v) public order; or (vi) for preventing incitement to the commission of any cognizable offence. The Proposed Amendments introduce a new category, i.e. anything that is “identified as fake or false by the fact-check unit at the Press Information Bureau”. This is not consistent with constitutional or democratic principles, and require a parliamentary enactment to expand the scope of Section 69A of the IT Act.
Further, the Proposed Amendments fall foul of the Supreme Court’s ruling in Shreya Singhal v. Union of India which upheld Section 69A only on the grounds that blocking can take place only by a reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary, and that there are only two ways in which a blocking order can be passed - one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court. The Proposed Amendment will bypass all these requirements, and introduce a new third route for passing blocking orders.
Separately, the Proposed Amendments do not define what “fake” or “false” means, nor does it lay down the parameters, criteria, factors or tests that the PIB and other government agencies will apply to classify something as “fake” or “false”. This will increase vagueness (which has been held by the Supreme Court to be unconstitutional in Shreya Singhal), and will make the IT Rules, 2021 even more prone to misuse than before. The lack of definitions are especially concerning as definitional and framing issues with terms like ‘fake news’, ‘false information’ have been highlighted by civil society organisations, scholars, academics, and researchers.
In fact, the Madras High Court, in its Order dated September 16, 2021 noted the strict government control over social media and digital news media by the IT Rules, 2021, when it held that “there is substance in the petitioners' grievance that an oversight mechanism to control the media by the government may rob the media of its independence and the fourth pillar, so to say, of democracy may not at all be there.” But in relation to government control over speech on social media, the Madras High Court had also noted that “There is a genuine apprehension, as the petitioners suggest, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen.” In light of these remarks from constitutional Courts, it is difficult to understand how MeitY continues to propose amendments to the IT Rules, 2021 without fixing any of its identified shortcomings.
Process is the punishment
It is also particularly concerning that the Proposed Amendments, with a significantly increased scope, were released on the final day of an ongoing consultation pertaining to online gaming intermediaries. Many stakeholders would have already submitted their comments. Notably, since the changes to rule 3(1)(b)(v) bear little relation to online gaming intermediaries, the pool of stakeholders who would be impacted by the Proposed Amendments has also been significantly altered. These stakeholders have effectively one week to respond to the call for comments, thus defeating the purpose of an extension and rendering it ‘notional’. This is disappointing as IFF had written to MeitY on January 12, 2023, requesting a deadline extension in line with the spirit of the Pre-Legislative Consultation Policy, 2014.
Such adhocism in consultation processes severely affects public trust in the process at a time when the Union Government is withholding consultation responses from the public domain. The disjointed nature of consultation processes are also a matter of concern as we await a ‘Digital India Bill’ for which no clear, specific and detailed vision has been articulated.
These Proposed Amendments have been put up by MeitY for consultation until January 25, 2023 on the MyGov platform at this link
- Draft amendments proposed to the IT Rules, 2021 in relation to PIB’s Fact-checking (link)
- Public notice for draft amendments, 2023 (link)
- The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (link)
- Our deep dive on how the IT Rules 2021 are unconstitutional and undemocratic, and how they will fundamentally change an Indian user's experience on the internet. (link)