Tuesday, Mar 02, 2021 08:15 [IST]
Last Update: Tuesday, Mar 02, 2021 02:36 [IST]
On 25 February, the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, were released jointly by the ministries of information and broadcasting and of electronics and information technology. They were met with an anticipated storm of dissent, particularly over rules that would regulate online content, such as user-generated material on social media and curated entertainment and news.
Criticism on the proposed rules were expected but not to this extent. Critics say that the “Intermediary Rules” fundamentally change the way the internet will be experienced in India. Most notably, the Rules now will bring government control rather than regulation over digital news platforms and OTT video content providers. Several requirements under them suffer from unconstitutionality and undermine the free expression and privacy for millions of internet users in India.
Under the rules, films and serials streamed across the internet will have age-gates rather than censor snips. This is a relief, but, as with online news sites, platforms that serve this sort of content must deploy gag orders as deemed applicable under a triple-tier system of oversight, with their self-nannying overseen by a “self-regulatory" body that will operate under a government panel. If this regulatory set-up offers no assurance of independence, the rules are even stiffer for social media: Every app with a big user base must put in place a mechanism for grievance redressal, resolve complaints promptly, keep the state in the loop, and take stuff off the web within specified time frames if official authorities so ask. To the extent that these platforms are to be held accountable for inflammatory posts, this system could play fire extinguisher. But, with private spaces having blurred with public squares, the rules could end up as tools of invasive surveillance.
Social media firms must reveal within 72 hours the “originator" of an unlawful message. If platforms fail to comply with such demands, they risk losing their “safe harbour" shield against prosecution over content. But origin-tracing could upend the promise of end-to-end encryption made by chat apps such as WhatsApp, and cast their privacy in doubt as a fallout. Meanwhile, what all falls afoul of the new rules—and would be subject to state directives—is rather broadly outlined. Apart from violations of law, the barred list includes any threat to public order and India’s sovereignty and integrity, as also offences of decency and morality, all of which could be twisted out of context by cyber-cops to stifle legitimate dissent. Given the primacy that we must accord free speech, this rule-kit should have been put to parliamentary scrutiny first. Instead, the Centre has imposed them under provisions of the Information Technology Act of 2000, the coverage of which has oddly been stretched to all online expression. Applied judiciously, these rules could do this country a good turn, sure, but their misuse would push our democracy China’s way. And Indians online do not want to be under watch.
On balance, the Information Technology Rules, 2021, do address growing concerns about the safety of children on the internet. They have also recognized the need for social media platforms to be held more accountable. However, it is worth asking: Wouldn’t these frameworks have greater moral legitimacy if Parliament had contemplated and passed them? After all, they do have implications for our fundamental rights of free speech and information. An un- informed citizenry, the Supreme Court observed in Union of India vs. Association for Democratic Reforms, would make democracy a farce. India must strive to ensure due protections for the right to seek, receive and impart information and ideas through any media, as encoded in Article 19 of the United Nations Declaration of Human Rights.