Big Brother syndrome

New rules for digital media have troubling implications

The new rules for information technology (IT) intermediaries have troubling implications for freedom of expression and the right to disseminate information. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, give the government wide-ranging discretionary powers to censor online news and content on social media platforms, and to take punitive actions against them. These guidelines also imply instant messenger services like WhatsApp, Signal and Telegram will be compelled to break encryption. They increase the cost of compliance substantially by the insistence that platforms adopt a complicated mechanism to address complaints. Digital news publishers and streaming services will be placed under a three-tier structure of regulation, with a government committee holding discretionary powers as a court of appeal. This goes against the spirit of the fundamental right of freedom of expression.

The IT Act, 2000, has also been expanded to bring digital news media under its regulatory ambit without legislative action, which could be challenged. The time given to a platform to take down content following a notice has been reduced to 36 hours, from the earlier 48 hours. The lowest tier of the three-tier mechanism asks digital platforms to adhere to some applicable Code of Ethics, like the “Norms of Journalistic Conduct”, compiled by the Press Council of India, or the Programme Code of the Cable Television Networks (Regulation) Act. It lists a negative list of content (centred around sex and violence) that will not be published.  “Any person having a grievance regarding content published by a publisher in relation to the Code of Ethics may furnish his grievance on the grievance mechanism established by the publisher.” So, literally anyone could complain about any content. Bigger platforms (with over five million users) will have to appoint a chief compliance officer and a nodal officer who will interface with law enforcement agencies. Complaints would first be taken up by the grievance officer.

If the complainant is dissatisfied, this can be escalated to a “self-regulating” body and then to the government’s oversight mechanism, when an inter-departmental committee will investigate the grievance. Apart from the compliance burden, this grievance mechanism opens the door for endless malicious and selective harassment of social media platforms. Messaging apps are to “enable the identification of the first originator of the information on its computer resource”, based on judicial orders. This means WhatsApp and Signal may be asked to trace specific viral messages to the originator. This is hard since end-to-end encryption is the norm. Hence, the implication that encryption will be broken if the government so requests. While these new rules offer far more leverage to shut down content that the government dislikes, breaking encryption is also a breach of privacy. It may be noted that a law protecting private personal data is now more than three years overdue, given the landmark Supreme Court judgment recognising privacy as a Fundamental Right in August 2017. It is undeniable that digital content platforms can carry controversial content and be channels for the dissemination of fake news. Indeed, every political formation, including the ruling dispensation, extensively uses digital media to put its own spin into public domain. However, these guidelines go much too far in terms of shutting down free speech in the guise of addressing fake news. Moreover, these guidelines will create discretionary systems, which can be selectively applied to harass political opponents and shut down criticism. No democracy should formulate such draconian laws.