THE government announced new Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 last week, superseding the 2011 Rules which mainly addressed intermediaries. The new rules provide for regulation of all kinds of online media, including intermediaries like Facebook or Google, over-the-top streaming services like Netflix or Amazon Prime, messaging services like Twitter or Whatsapp, and news and current affairs websites. While we may touch upon the other media, focus here will be online news media.

As stated by the ministers for information and broadcasting (I&B) and for electronics and information technology (MeitY) at a press conference while releasing the rules, and in government press releases, the rules were required to “level the playing field” with print and television media, to provide avenues for the public to complain against objectionable content in online media without curbing freedom of speech and expression, and contains only a “soft-touch oversight mechanism.”  However, a quick look at the provisions would show not only that these sugar-coated claims are blatantly incorrect, but that the new rules in fact arm the executive with untrammeled powers over online news media with few if any checks and balances, opening the door wide for government intrusion, pressure and censorship. 

HEAVY HAND OF GOVERNMENT
The older print and TV news media are largely self-regulated by peer-group bodies such as the Press Council and the News Broadcasting Standards Authority. On the other hand, the new IT Rules 2021 stipulate a direct and dominant role for the government, leaving no scope for self-regulation, despite earlier attempts made by industry bodies. Not a level playing field at all.

The different mechanisms for monitoring and complaint redressal specified under the new rules reveal the heavy hand of the executive as prosecutor, judge and jury, rather than the self-proclaimed “soft-touch.”

The rules call for a three-tier complaint redressal mechanism, comprising the news media entity itself as the first tier, the second tier being a self-regulatory industry body headed by a retired judge, notably to be selected from a panel provided by the I&B ministry, and an oversight mechanism comprising a governmental inter-departmental committee which will also formulate a charter and code of practices for the self-regulatory body, a grievance portal under the government, and a joint secretary authorised to issue orders for punitive action.   

One may have expected that grievance redressal would start from the media entity and proceed upwards if not satisfactorily resolved, but here the process is top-down providing full control to the government.

Any complaint is first sent to the I&B ministry’s grievance portal, which refers it to the concerned media entity, with copies to the self-regulatory body and the ministry. If the media entity does not resolve the matter to the satisfaction of the complainant with corresponding reflection on the grievance portal within 15 days, the matter escalates to tier-2 and then to tier-3, which is the government entity whose decision is then final.

It is to be noted that, even in the case of intermediaries, complaints or orders to block accounts or provide information can originate from a court or from a joint secretary of the government.

Therefore, the new rules are heavily weighted in favour of the executive which will judge whether grievances have been addressed properly or not, which will then decide whether action should be taken, and which will then enforce those orders. There is no system of checks and balances as there should be in any regulatory system, which should be built around a quasi-judicial structure independent of the government of the day.

OPAQUE CRITERIA
The extremely vague provisions in the rules as to what constitute violations of media ethics, and hence calls for punitive action, add fuel to this fire. The new rules, for example, speak in various places of content that threatens “the unity, integrity, defence, security or sovereignty of India, or public order, or causes incitement to the commission of any cognizable offence,” or “content that violates any law” and keeping in mind “activities, beliefs, practices, or views of any racial or religious group,” all of which are extremely open to selective interpretation. Additionally, partisan decisions by the government cannot be ruled out, especially under the present dispensation.

Complaints must also be seen in the context of organised “troll armies” of a specific political orientation, and the “cyber crime volunteer programme” of the ministry of home affairs which encourages people to report “unlawful” content.

It may be noted that, in the case of TV news channels, where the self-regulatory industry body has been rendered ineffective by the government not having given it statutory status, the government has chosen not to intervene even in blatantly partisan, communally inflammatory content and fake news by several TV channels, even though such residual powers exist under the Cable Television Network Rules 1994. Widely viewed and telecast speeches by highly-placed persons to “shoot those so-and-sos,” or programmes openly castigating certain communities for spreading Covid-19 or infiltrating government services, have all sailed through. On the other hand, “hurt to religious sentiments” of the majority community is immediately accepted as a legitimate and grievous offence.

This continuing experience, and that of various government agencies being used mainly against those voicing opinions critical of the government, reinforces the widely held suspicion that the government would use these new IT Rules too chiefly to harass and go after its critics.

Experts have pointed out that these vague definitions are also visible in other draconian laws such as the UAPA and laws on sedition. These experts note that while a large number of cases have been filed under the UAPA or sedition laws, only a small fraction of these led to charges, and only a small fraction of these end with convictions. Given frailties of the judicial system, punitive actions taken by government stand for a long time whatever the outcome of judicial processes, the process itself becoming the punishment.

It is small wonder that almost the entire media fraternity has opined strongly against the new rules, which will have a chilling effect on freedom of speech and critical opinion.

QUESTIONABLE LEGALITY
Many of the provisions in the new rules also appear to prima facie violate the IT Acts under which they are supposedly framed. Noticeably, while the IT Acts have been invoked, it is the I&B ministry which is empowered under these new rules to take action against online news sites and other content providers.

The Information Technology Act 2000 does not cover news media and, since no other measure to regulate online news media has been legislated so far, it appears that these new rules have been issued in a legislative vacuum. The IT Act has not hitherto been used to regulate content, except for the infamous Article 66(A) which was struck down by the Supreme Court as violating the freedom of speech under Article 19(1)(a) of the constitution.  Further, such “rules” are meant to elaborate upon an original legislation so as to govern its implementation. No rules can exceed the objectives and mandate of the original legislation. As such, the present rules appear to be an attempt to regulate online news media through the backdoor. Regulation of online media content requires the government to frame an appropriate bill, place it before parliament for scrutiny and ultimately pass legislation.

There are numerous other issues relating to these rules which either violate constitutional provisions on freedom of speech or privacy of personal information, for which again the government has been reluctant to bring forth appropriate legislation, or the basis on which different online platforms are built. For instance, the rules require that, on demand by government if it deems laws have been violated, the first originator of the offending message. How does the messaging service do so if the messages are encrypted end-to-end without either violating the privacy of the individual concerned or breaking the code it promised to keep secret even from itself? And does this requirement not violate Section 79 of the parent IT Act itself which provides a ‘safe harbour’ from liabilities in certain cases?

Clearly, these rules are open to challenge on a variety of grounds. Given the present context in the country, it would take a brave person indeed to risk facing the unknown in the higher judiciary when it comes to executive fiats, several of which have been endorsed by the court and several others not even taken up even over prolonged periods. Despite these challenges, it appears likely that someone or other will run that gauntlet.