By Sabrina Bath
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were recently notified in February, 2021. The Rules have been published in accordance with the provisions of the Information Technology Act, 2000. It is a first attempt for establishing rules governing cybercrimes and electronic transactions. The 2021 Rules supersede the 2011 Rules on Information Technology (Intermediaries). With respect to the OTT platforms, the organizational framework developed by the Digital Media Ethics Code would create a secure regulatory climate conducive to its job creation, investment and expansion.
The Intermediary Guidelines are a first step in developing a soft-touch, self-regulatory framework for digital media platforms functioning in India, as well as a three-tier grievance redressal system. It is aimed at establishing a mechanism for self-regulation of various social media platforms, intermediaries, digital media enterprises and various streaming services. But adherence to the Intermediary Guidelines is predicted to be a challenging task for social media and digital media platforms. The same is being criticized as a move to restrict free speech and expression and interfering with the fundamental right to privacy. These rules drastically alter how Indian internet users interact online. They impose government control over digital platforms and over-the-top video content providers, rather than regulation. Numerous criteria contained within them are unconstitutional and jeopardize the fundamental right to free expression and privacy of the Indian internet users.
RELEVANT CASE LAWS:
Prajwala v. Union of India- The rules originated through this case whereby the Apex Court directed the government to develop the required guidelines/Standard Operating Procedures and enforce them in order to eradicate gang rape and rape imagery, child pornography, websites and videos from content hosting platforms and other applications.
Tehseen S. Poonawalla v. Union of India & Ors.- The Apex Court granted the government complete authority to prevent/curb the transmission of imprudent and incendiary comments on various social media platforms that have a proclivity to instigate any form of violence.
IMPLICATIONS OF THE NEW IT RULES, 2021- VIOLATION OF FUNDAMENTAL RIGHT TO SPEECH AND PRIVACY:
The primary issue of contention is if these restrictions infringe users’ basic rights to privacy and expression over the internet. WhatsApp, an online messaging platform owned by Facebook, has also sued the government, claiming that the new restrictions violate Indian citizens’ right to privacy and that these guidelines should be ruled unconstitutional. It has been observed that it violates the fundamental right to privacy because it fails to meet the three-part proportionality, legality and necessity test laid down by the Apex Court.
Establishing the initial source of information violates both the fundamental right to free speech and Section 79 of the Information Technology Act 2000. Additionally, it violates the privacy of the users by enabling traceability and evading encryption conditions. Advocates of traceability believe that it is the only way to tackle fake news, disinformation and identify the source of criminal content. But in the opinion of the experts, such precautions are inefficient and it has been suggested to adopt some form of additional approach to evade any such tracking. The restrictions stifle free speech by designating the government as the sole assessor of offensive online expression. Additionally, these recommendations undercut the fundamental values of an easily accessible and open internet for all.
Although the government claims that these regulations are oversight mechanism to regulate the misuse of the Internet and its platforms, but an in-depth analysis and the on ground situation reveals that these guidelines aim at increasing online censorship in the name of an oversight mechanism.
Recently, conventional newspaper and television media firms having a notable presence and influence in the digital news arena have sued to invalidate and declare the new IT Rules, 2021 as unconstitutional. A writ petition in the Madras High Court has been filed by the Digital News Publishers Association (DNPA), which includes publishers such as Amar Ujala, Times of India, Dainik Jagran, India Today, Indian Express, NDTV and Dainik Bhaskar. The main aim of the same was to seek an order declaring the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 as ultra vires the Indian Constitution and violative of Article 14, Article 19(1)(a) and Article 19(1)(g), thereby declaring them void. Appropriate government agencies were also notified by the Court. The petition asserts unequivocally that the new IT Rules attempt to regulate the behaviour of businesses that are not covered by the IT Act, 2000, indicating that regulating news is not covered by the same. The new laws pave the way for the suppression of free expression and the autonomy of the news media, which have been affirmed by the Apex Court in a series of rulings.
These rules are certainly ushering in a period of fear and surveillance. Similarly, the Delhi High Court has requested the Centre’s answer to a petition contesting the new information technology rules on the grounds that they violate users’ free speech and privacy on social media platforms like WhatsApp, Instagram and Twitter. It has been asserted that the new rules grossly violate the freedom of speech and expression over the internet and various online platforms. The policies affecting digital platforms such as YouTube, Twitter and Facebook directly affect online speech and its freedom. It has been argued that the government legislation like the proposed modification to the rules governing platform liability has eroded the online free expression and privacy rights, while fostering private censorship.
CONCLUSION AND SUGGESTIONS
The essential principle of a democracy is the right to free discussion and expression. The ground for striking a balance between fundamental rights and developing an appreciation for the rationality of a restriction has been a constant effort since the Constitution’s adoption.
Both state order and privacy must be considered by the various platforms and government, while maintaining a balance with the basic rights of the citizens. Consideration must be given to safeguarding the interests of end users, and regulations and laws should not be drafted in such manner that contradicts their fundamental rights.
Additionally, there is a compelling need for law and order to be in effect to curtail the dissemination of misleading information while simultaneously ensuring that citizens' privacy is not jeopardized.
Recognizing the difficulties associated with disinformation, legitimate access to law enforcement and the circulation of illegal content, the law should require intermediaries to establish grievance mechanisms and systems of governance that enable the swift removal of content ascertained to be unlawful by the judiciary or adequate government entities. Owing to the “filter bubble” effect under which identical content is offered to the users, they are not presented to contrasting viewpoints, making them easy victims for misinformation. To overcome the conflict between safeguarding and defending the rights of individuals who have been subjected to social media exploitation and individual speech, a fine balance between the two would be required.
 The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, (Sept 29, 2021, 10 AM) https://mib.gov.in/sites/default/files/IT%28Intermediary%20Guidelines%20and%20Digital%20Media%20Ethics%20Code%29%20Rules%2C%202021%20English.pdf).  The Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).  Prajwala v. Union of India, (2015) 17 SCC 29.  Id.  Tehseen S. Poonawalla v. Union of India & Ors., (2018) 9 SCC 501.  Id.  INDIA CONST. art. 19(1)(a).  The Information Technology Act, 2000, s. 79, No. 21, Acts of Parliament, 2000 (India).  Anuradha Bhasin v. Union of India, (2020) SC 1725.  M.K. Venu, Invoking Free Speech Violations over NEWIT Rules, Big media Finally goes to the Court, THE WIRE (12 August, 2021, 2PM), https://thewire.in/government/invoking-free-speech-violations-over-nw-it-rules-big-media-finally-goes-to-court.  The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, (Aug 10, 2021, 10 AM) https://mib.gov.in/sites/default/files/IT%28Intermediary%20Guidelines%20and%20Digital%20Media%20Ethics%20Code%29%20Rules%2C%202021%20English.pdf).  INDIA CONST. art 14. INDIA CONST. art 19(1)(a).  INDIA CONST. art 19(1)(g).  Whatsapp LLC v. UOI, W.P. (C) No. 677/2021.
Author: Sabrina Bath
Collage: Symbiosis Law School, Pune