NEWS By and large, the Information Technology Rules, 2021 go against landmark judicial precedents upholding key rights.

CONTEXT

• Recently, the Ministry of Electronics and Information Technology has framed the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011.
• The rules broadly deal with the regulation of social media and over-the-top (OTT) platforms and digital news.

POSITIVES OF THE RULES

The Rules mandate duties such as:

• removal of non-consensual intimate pictures within 24 hours,
• publication of compliance reports to increase transparency, 
• setting up of a dispute resolution mechanism for content removal 
• adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

CONCERNS SURROUNDING THE RULES

While there are positive aspects about the guidelines, there are some glaring ambiguities that are contrary to past Supreme Court of India precedents such as K.S. Puttaswamy.

Against SC verdict:

• The Supreme Court in the case of Life Insurance Corpn. Of India vs Prof. Manubhai D. Shah (1992) had elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’. 
• It went on to say that ‘any attempt to stifle, suffocate or gag this right would sound a death knell to democracy’ and would ‘help usher in autocracy or dictatorship’.

Against the principle of colourable legislation:

• Despite the Second Schedule of the Business Rules, 1961 does not empower MeiTY to frame regulations for ‘digital media’, these rules are framed by the Ministry of Electronics and Information Technology (MeiTY). 
• On the contrary, this power belongs to the Ministry of Information and Broadcasting. 
• This action violates the legal principle of ‘colourable legislation’ where the legislature cannot do something indirectly if it is not possible to do so directly. 
• The Information Technology Act, 2000, does not regulate digital media. Therefore, the new IT Rules which claim to be a piece of subordinate legislation of the IT Act, travel beyond the rule-making power conferred upon them by the IT Act. 
• This makes the Rules ultra vires to the IT Act.

Fair recourse:

• The subject of concern is that the rules threaten to deprive social media platforms of their safe harbour immunity in the event of non-compliance with the said rules. 
• An intermediary is now supposed to take down content within 36 hours upon receiving orders from the Government. 
• This deprives the intermediary of a fair recourse in the event that it disagrees with the Government’s order due to a strict timeline. 
• Additionally, it places shackles upon free speech by fixing the Government as the ultimate adjudicator of objectionable speech online.

Undermines right to privacy:

• The Rules undermine the right to privacy by imposing a traceability requirement. i.e. the immunity that users received from end-to-end encryption was that intermediaries did not have access to the contents of their messages. 
• Imposing this mandatory requirement of traceability will break this immunity, thereby weakening the security of the privacy of these conversations. 
• This will also render all the data from these conversations vulnerable to attack from ill-intentioned third parties. 
• The threat here is not only one of privacy but to the extent of invasion and deprivation from a safe space. 
• These regulations in the absence of a data protection law, coloured in the backdrop of recent data breach affecting a popular pizza delivery chain and also several airlines highlight a lesson left unlearnt.

On fake news:

• Instead of eliminating the fake news, the rules proceed to hurriedly take down whatever an arbitrary, ill-decisioned, biased authority may deem as “fake news”.

Additional financial burden:

• Also, the Rules create futile additional operational costs for intermediaries by requiring them to have Indian resident nodal officers, compliance officers and grievance officers. 
• Intermediaries are also required to have offices located in India. This makes profit making a far-fetched goal for multinational corporations and start-up intermediary enterprises. 
• Therefore, not only do these Rules place a barrier on the “marketplace of ideas” but also on the economic market of intermediaries in general by adding redundant financial burdens.

WAYFORWARD

• The first step to eliminate fake news is to clearly define what constitutes fake news within the ambit of the rules.
• There is a need for robust data protection legislation, without which data from conversations will be vulnerable to attack from ill-intentioned third parties.
• Also, there is an urgent need to critically scrutinise the recent barriers being imposed via these Rules against the right to free speech and expression.

Democracy stands undermined in direct proportion to every attack made on the citizen’s right to have a private conversation, to engage in a transaction, to dissent, to have an opinion and to articulate the same without any fear of being imprisoned.

Reference:

1. https://www.thehindu.com/opinion/lead/nine-pin-bowling-aimed-at-free-speech-privacy/article34661717.ece