If enforced and maintained in their current form, these rules will ‘govern’ the big tech companies at the expense of the freedom of expression in the world’s largest democracy.
By Kumar Kartikeya
According to the newly published study by Freedom House, a non-profit organisation that measures the Freedom index of various countries, India has downgraded to a ‘partly free’ nation from a ‘free’ nation. Over the last few years, India has seen a gradual but steady erosion of civil rights and freedom of speech. The silencing of voices by detaining or arresting dissenters, teachers, scholars, protesters, and journalists is an extremely worrying tactic practiced by the current government. The controversial imprisonment of a 22-year-old climate activist, Disha Ravi, for editing a Google document containing links and tools to fund ongoing farmer demonstrations provoked an international outcry.
Besides deliberate harassment of news outlets and organizations, the country has witnessed investigation of independent journalists through imperial sedition laws, criminal defamation charges, and in many cases hassling of media persons, activists, and non-governmental organizations by having them investigated by the Income-Tax Department and Enforcement Directorate.
In this context, social media and digital news organizations, and intermediaries play an important role in upholding and protecting the right to free speech. In February 2021, the Government of India introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which tend to dismay online media houses due to its stringent provisions and is a huge blow to the freedom of expression on social media.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) both ensure freedom of speech and expression. In 1948, India signed the UDHR, and in 1979, it ratified the ICCPR. In due course of its time, the Hon’ble Supreme Court of India has often weighed upon the principles of UDHR and ICCPR. The Apex court time after the time stated that the UDHR and ICCPR are essential to India’s constitutional philosophy.
In the judgments of Navtej Singh Johar v. Union of India(The LGBTQ Judgement) and Justice (retd.) K.S. Puttaswamy v. Union of India (Right to privacy or Aadhar Judgement), both landmark cases of recent times, the Supreme court of India gave cardinal importance to Article 19 of the ICCPR, in order to determine the constraints on the freedom of speech and expression.
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, extends to mediators/intermediaries such as internet service providers, social media sites (like WhatsApp, Facebook, Instagram, etc.), online news organizations (like LiveLaw, The Quint, The Wire, etc.), over-the-top (OTT) platforms (like Amazon Prime, Netflix, etc.), and “other institutions that report news and current affairs.” These new rules impose very harsh and arbitrary obligations to the intermediaries such as:
Rule 4(2) forces the intermediaries who offer messaging services, such as WhatsApp, Telegram, to disclose the first originator of messages under circumstances where authorities think that the message is sought to break the sovereignty and integrity of the nation.
Rule 4(4), states that effective content detection algorithms should be used by social media sites to detect, filter, and delete certain types of illicit information/data/content. This “illicit information/data/content” means any unlawful information, which is prohibited under any law for the time being in force concerning the interest of the sovereignty and integrity; security of the State; public order; decency or morality.
Rule 7, states imposition of criminal penalties on intermediaries that refuse to follow these R’/ules.
Rule 16 vests the power in the hand of the government and authorities by allowing them to issue temporary restraining orders or delete the type of content immediately.
For these concerns, IT Rules 2021’s conformity with the Constitution of India was subsequently objected to in the Delhi High Court (plea by The News Minute, The Wire and The Quint) and Kerala High Court (plea by leading law website LiveLaw). In addition to failing to comply with the fundamental rights of speech and expression under Article 19(a) of the Constitution of India, IT Rules 2021 pose very critical concerns regarding India’s commitments under the UDHR and the ICCPR,
A restraint on freedom of speech must meet three criteria under Article 19 of the International Covenant on Civil and Political Rights:
It must be enforced via legislation,
It must pursue a valid goal, and,
It must be required for a democratic and free society.
Nations have a valid goal in policing third-party intermediaries:
To maintain public order,
Social security, and
Citizens’ interests and reputations.
These rules fail to stand on the principles of ICCPR and the Constitution of India:
The government has the authority to introduce harsher liabilities on certain intermediaries at its discretion. IT Rules 2021 do not satisfy the legal principles because they give the Executive unrestricted authority to choose the intermediaries/third-party that must comply with stringent regulatory requirements. IT Rules 2021 give the government broad authority to determine which intermediaries must adhere to a stricter legal framework. These rules place more strict duties on those “significant social media intermediaries” with a user base of more than 5 million people. This requires, among other things, a dynamic and expensive dispute conciliation process, sophisticated content filtering techniques, and user traceability.
Rule 6 of the IT rules 2021 is a complete antithesis to freedom of expression and speech. It notes that even though social network mediators/intermediaries may not reach this user threshold (of 5 million), the central government can even compel an intermediary to meet these legal requirements if the central government feels that their activities may pose a material risk of harm to India’s sovereignty and dignity, or public safety.
This unrestricted freedom enables the government to selectively pick up favorites among various social media sites and encourage certain favoured platforms, those who tend to ignite the propaganda of political parties in power, to be governed by less stringent regulations. Whereas other platforms fail to remove critical voices against the government and are controlled by more stringent regulations.
IT rules, 2021 even fail to ensure the right to privacy of a citizen. The tracking clause in Rule 4 of the 2021 Rules contradicts the right to privacy guaranteed under Article 17 of the ICCPR. In the famous case of Justice (retd.) K.S. Puttaswamy and ors. v. Union of India, the Hon’ble Supreme Court of India ruled that the right to privacy is an essential component of the right to life under Article 21 of the Constitution of India.
Rule 4(2) of IT Rules, 2021 requires a major social media communications entity to determine the first original source of a message while investigating such crimes. This provision breaches the right to privacy by granting executive authority the discretion to compel a social media site to reveal the identity of a user.
To enforce traceability in a way that is consistent with end-to-end cryptography is vulnerable to tampering and malicious actors could falsely change the original creator of the information to frame an innocent user. Furthermore, the sender has no say about who forwards the message or how many times it is forwarded.
IT Rules, 2021, place stringent fines, including criminal punishments, on intermediaries that refuse to comply with them. Rule 7 specifies that any social media intermediary who fails to fulfill its duties under IT Rules, 2021, will be subject to any applicable penalties, including the provisions of the Indian Penal Code. In administering penal sentences permitted by the Indian Penal Code, the proportionality provision under Article 19 of the ICCPR is not met.
Enactment of such rules in a vast democracy like India has a very chilling effect on the very foundation of democracy, the freedom of speech and expression. As already said the Freedom House report downgraded India to a ‘partially free’ democracy, based on the same line. V-Dem Institutes that measures global standards stated in a report took an even harsher stance and concluded that India is no more a democracy and is rather an electoral autocracy. Even in a report by The Economist Intelligence Unit, India went down by 2 positions to rank 53 in the democracy index out of 167 ranked nations.
IT Rules are a cataclysmic moment foretelling the downfall of free speech in India’s socio-political environment and with it, the downfall of democracy, whatever is left of it. Activists, writers, lawyers, and civil societies have urged the Hon’ble high courts to hear objections to the 2021 IT Rules to protect free speech and the right to privacy, as well as to overturn the discriminatory rules. If enforced and maintained in their current form, these rules will “govern” the big tech companies at the expense of the freedom of expression in the world’s largest democracy.
Kumar Kartikeya is a student of law based in Delhi. He runs a website named The Policy Observer. Views expressed are personal