Analysis of The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – Impact on Freedom of Speech and Expression and Right to Privacy

Avar Lamba*

Introduction-

A free flow of opinions and information is essential for the survival of a democracy. A limitation on the fluidity of such viewpoints is an abhorrent violation of the freedom of speech and expression[i] under Article 19(1)(a). The new Information Technology Rules have started an interesting debate about the ambit of freedom of speech as well as the fundamental Right to Privacy[ii] under Article 21 of the Constitution.

The vast ocean of information that is available over Social Media platforms makes the task of regulation of the right of Freedom of speech an arduous job. Freedom of speech over the internet was cataloged in a detailed manner in the case of Shreya Singhal v. Union of India,[iii] in which Section 66A of the IT Act, 2000 was struck down as being violative of the fundamental right of freedom of expression. The court elucidated upon its ruling by stating three key elements of Free speech- discussion, advocacy, and incitement, thus laid down the bible for monitoring of free speech over the internet. Freedom of expression is important for demonstrating and communicating one’s ideas and views, especially over the internet, which provides a different dimension to the Right of free speech. The internet, specifically social media, has become a forum for the exchange of ideas, and a tool for individuals to express themselves, therefore, it was time for legislation and policies for the regulation of the same, but regulation of social media intermediaries has not always been a walk in the park.

Section 2 of the Information Technology Act, 2000 defines an ‘intermediary’ as a person who receives, stores or transmits records in electronic form on behalf of a person or provides any service with respect to such records. As per govt. notification, a significant social media intermediary under Rule 2, clause v of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[iv] is a person who has more than 50 lakh registered users in the country.[v] This brings major social media platforms such as Twitter, Facebook, WhatsApp, Telegram, and a few major Over the Top (OTT) platforms under the purview of the guidelines, hence, making all the provisions that are to be discussed in this article applicable to them. 

As stated above, implementation of new guidelines can often lead to feuds between the government and social media platforms, with regards to regulation of information over such platforms. One example of such a feud is the very public dispute between Twitter and the Ministry of Electronics and Information Technology (MeitY), where Twitter had classified tweets of BJP spokesperson, Sambit Patra as ‘Manipulated Media’ (manipulated media refers to tweets that have been altered or fabricated and are likely to cause harm), after which the office of the Social media giant was raided by the Delhi Police, an action which led to Twitter labeling the raid as an intimidation tactic of the government.[vi] The MeitY further asked Twitter to comply with the new Rules, despite concerns being raised by the platform regarding Criminal liability of the single compliance officer [Rule 4(a)] for content on the platform. This brings out the difficulties faced by the government and the challenges imposed upon social media intermediaries while implementing legislations that restrict scope of operation of such intermediaries.

The arrival of the IT rules has caused a stir not only for the social media intermediaries, as the immunity that is available to social media intermediaries under Section 79 of the IT Act, (which was amended after the case of Avinsh Bajaj v. State (NCT) of Delhi[vii] to provide a safe harbor to intermediaries for information/content that was made available on their platforms by third parties) would be taken away on non-compliance with the provisions of the new Rules,[viii] but also, for the citizens whose freedoms are being endangered.

Impact on Freedom of Speech & Expression-

Although Facebook[ix] and Twitter have agreed to comply with these guidelines[x], there is still much hue and cry about the infringements caused by their arrival. The IT guidelines allow the central government autonomy to censor content not only on platforms of such intermediaries but allow it to censor content available on Over the Top (OTT) streaming networks[xi] such as Netflix and Amazon prime as well. A recent example of similar censorship would include the Tandav controversy. The show was accused of hurting the Religious Sentiments of a section of the audience, and parts of it that were considered offensive were censored, but even after that, FIRs were filed against directors and other key members of the production.[xii] The vast extent of backlash faced by the show can be seen as a catalyst for the call for such regulation and censorship.

But, in the backdrop of the recent trends with regards to actions of the current central government against journalists who raised socio-political issues criticizing the government (some examples include registrations of FIR’s against journalists in Kashmir,[xiii] Maharashtra,[xiv] Uttar Pradesh[xv] who spoke against government policies and practices)[xvi]; these guidelines can be interpreted as a backdoor method of placing restrictions on freedom of speech on social media and OTT platforms.

 Section 69A (Power to issue directions for blocking for public access of any information through any computer resource) of the IT Act[xvii] is already in place to allow the government to block any information that threatens the security and sovereignty of India, which was used recently to ban those Chinese apps which were prejudicial to the sovereignty and integrity of India, defense of India, security of the state and public order.[xviii] These new guidelines come about as a separate attempt to ensure tighter and stricter compliance mechanisms that, if not complied with, would result in reprimands and a loss of a right to operate within the country (for intermediaries). The use of these new powers is warranted by the detestable spread of obscene imagery over such platforms [as mandated by the Supreme Court in Write petition number 3/2015 while dealing with the Prajwala letter case (Re: Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence and Recommendations)[xix]]. Further, the autonomy given to the government or its agencies under Rule 3(d)[xx] (and the constitution of a regulating body under Rule 14[xxi]) of the guidelines to remove any ‘unlawful information’ is in itself not specific enough and allows for a very broad area of operation, ironically giving a lot of freedom to the government to increase restrictions upon freedom of speech. Such powers could allow the government to declare ideas and views that go against its policies or ideologies and condemn/criticize its actions as ‘unlawful information’, thus allowing for suppression of opposition and restriction of free speech.

Extent of Impact on Right to Privacy-

The Supreme Court time and again had refuted from recognizing the Right to Privacy as a Fundamental Right, and had denied its existence in the cases of M.P. Sharma v. Satish Chandra[xxii] and Kharak Singh v. State of Uttar Pradesh[xxiii], where Right to Privacy was considered as alien to the constitution and not a part of Right to life and Personal Liberty. But the case of Justice K.S. Puttaswamy (Retd.) v. Union of India[xxiv] recognized the Right to privacy as Fundamental Right, holding it to be an intrinsic part of the Right to life and Personal Liberty under Article 21. The court included autonomy over personal decisions, bodily integrity, and protection of personal information in the ambit of Right to Privacy and observed that this right is not surrendered entirely when an individual is in the public sphere and that consent of the individual was necessary for the distribution of inherently personal data.

Now, while the impact on free speech is not minor, these guidelines seem to breach the Right to Privacy in the public sphere as well. Rule 4(2) of the guidelines requires compliance from intermediaries in order to trace the information back to its source/originator and also places an obligation over the intermediaries to save an electronic copy of the information sent across by the user. Tracing the origin of messages would mean tracking every single message in a chain of messages which is a clear violation of the right to privacy under Article 21.

Further, the end-to-end encryption (which is essential for the maintenance of privacy as it ensures secrecy of private conversations) provided by platforms such as WhatsApp or Telegram becomes insignificant as the government now, basically, asks them to “keep a fingerprint” of every single message sent on the application,[xxv] which is a clear indicator of government intentions with respect to the Right to Privacy. WhatsApp, while calling the rules manifestly arbitrary, in its petition filed in front of the Delhi High Court, has argued that such encryption is essential for the protection of journalists and activists, who would otherwise be open to the risk of retaliation. To this, the MeitY has responded by stating that while it is committed to ensuring the Right to Privacy of Citizens, it is also the responsibility of the government to maintain law and order and ensure national security, further labeling WhatsApp’s petition as ‘an unfortunate event to prevent the same from coming into effect.[xxvi]

If we try to look for a harmonious and effective way forward to protect the Right of Privacy and ensure national security, the provision for tracing the originator of messages must be amended to confine its application to messages that threaten national security, by identifying situations where such application would actually be required. Identification of messages that threaten the safety of individuals must be a key priority before proceeding ahead to track the originator of the message, ensuring that end-to-end encryption is broken in circumstances that require immediate government action, thus protecting the Right to Privacy of individuals.

The Road Ahead-

While restrictions such as removal of ‘unlawful information’ and tracking down of originator of messages (as mentioned above) imposed by these guidelines are important for many reasons, some of which include prevention of cyber terrorism and protection of national security, the restrictions shouldn’t be vague to allow their misuse. Our government has not gone down the path opted by the United States of America many years ago, when it chose to invade the privacy of its citizens and of world citizens without their authorization[xxvii], but an important point of observation is that invading the privacy of users in the name of national security is exactly the reasoning which was given by the USA in 2013.[xxviii] There is a fine line of distinction between protection and invasion, which unfortunately has not been outlined in the new IT guidelines, therefore leading to future possibilities of misuse, based on past trends. What is crucial is to establish a fine line of separation between the two to eradicate any such possibility. Autonomy of the executive authorities must be limited as the imposition of regulations that give far-reaching powers to the executive creates the possibility for excessive use of such power, allowing for arbitrary action by the state. Further, it is important to reduce any form of ambiguity in the Rules which can also create room for misapplication, thus, allowing for mala fide exercise of authority. The only way forward is to go through these legislations with a fine-tooth comb to understand where the loopholes lie and fix them so that any form of exploitation can be prevented. Hence, the prospect of misapplication can be curbed with a clear-cut line of distinction as to what the government can actually do under the rules.


*Avar Lamba is a Second year Law student at GGSIPU, Delhi. For any discussion related to the article he can be contacted at avarlamba@gmail.com.

[i] INDIAN CONST. art 19, cl. 1.

[ii] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; INDIAN CONST. art. 21.

[iii] (2013) 12 SCC 73.

[iv] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 2.

[v] Govt sets 50 lakh users threshold to define ‘significant social media intermediary’ under IT rules, Economic Times (Feb. 27, 2021, 1:45 PM), https://economictimes.indiatimes.com/news/economy/policy/govt-sets-50-lakh-users-threshold-to-define-significant-social-media-intermediary-under-it-rules/articleshow/81242741.cms?from=mdr.

[vi]Twitter can’t dictate India’s Legal Policy’: MeitY hits back at the site’s staff security concerns, Business Today (May 27, 2021, 11:04 AM), https://www.businesstoday.in/current/economy-politics/twitter-cant-dictate-india-legal-policy-meity-hits-back-at-site-staff-security-concerns/story/440179.html.

[vii] (2008) 150 DLT 769.

[viii] Shubham Singh, Explained: What does Section 79 of IT Act mean for Social media intermediaries?, Zee News (May 28, 2021, 11:30 PM), https://zeenews.india.com/technology/explained-what-does-section-79-of-it-act-mean-for-social-media-intermediaries-2365079.html.

[ix] Prasid Banerjee, Facebook to comply with India’s new intermediary rules, refuses to say when, Livemint (May 25, 2021, 4:23 PM), https://www.livemint.com/companies/news/facebook-to-comply-with-india-s-new-intermediary-rules-refuses-to-say-when-11621939484226.html.

[x]Twitter Agrees To Comply With India’s New IT Rules: What Does This Mean?, India Times (Jun. 1, 2021, 3:52 PM), https://www.indiatimes.com/technology/news/twitter-india-new-it-rule-compliance-541659.html.

[xi] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 12.

[xii] Entertainment Desk, Tandav Controversy; Here’s everything you should know, The Indian Express ( Jan 27, 2021, 7:18 PM), https://indianexpress.com/article/entertainment/web-series/controversies-surrounding-tandav-heres-everything-you-should-know-7163727/.

[xiii] Prashasti Awasthi, Editors Guild of India calls out Police for harassing Kashmir Journalists, The Hindu Business Online (Apr, 22, 2020, 1:07 PM), https://www.thehindubusinessline.com/news/national/editors-guild-of-india-calls-out-police-for-harassing-kashmiri-journalists/article31402410.ece.

[xiv] Prateek Goyal, ‘It’s just wrong’: Maharashtra journalist booked for reporting on migrant relief camps, News Laundry (May 26, 2020, 3:21 PM), https://www.newslaundry.com/2020/05/26/its-just-wrong-maharashtra-journalist-booked-for-reporting-on-migrant-relief-camps.

[xv] Arrests, beatings and dismissal of journalists underline official and corporate arbitrariness: Samden, Human Rights Initiative (May 26, 2020, 11:34 AM), https://www.humanrightsinitiative.org/press-releases/arrests-beatings-and-dismissals-of-journalists-underline-official-and-corporate-arbitrariness-samden.

[xvi] Avar Lamba; Shubhit Shokeen, Freedom of Press and Media in India- Exploring the Contemporary Narrative around Article 19(1)(a), 2 WHITE BLACK LEGAL LAW JOURNAL 5, 10 (2021).

[xvii] The Information Technology Act, 2000, § 69A .

[xviii] Aayush Soni; Aditi Chaturvedi, Can Chinese Apps appeal India’s ban? Section 69A of IT act has the answer,The Print (Jul. 6, 2021, 12:31 PM), https://theprint.in/opinion/can-chinese-apps-appeal-india-ban-section-69a-of-it-act-has-answer/455316/.

[xix] (2018) SCC OnLine SC 775.

[xx] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 3.

[xxi] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, Rule 14.

[xxii] AIR 1954 SC 300.

[xxiii] 1964 SCR (1) 332.

[xxiv] (2017) 10 SCC 1.

[xxv] Pankaj Doval, WhatsApp sues government over new IT Rules seeking origins of inflammatory messaging, Times of India (May 26, 2021, 12:39 PM), https://timesofindia.indiatimes.com/business/india-business/whatsapp-sues-government-over-new-it-rules-seeking-origins-of-inflammatory-messaging/articleshow/82965602.cms.

[xxvi] Apoorva Mandhani, WhatsApp vs Modi Govt: Privacy or Politics? This is what they are fighting over, The Print(May 29, 2021, 10:04 AM), https://theprint.in/judiciary/whatsapp-vs-modi-govt-privacy-or-politics-this-is-what-theyre-fighting-over/667425/.

[xxvii] Raphael Satter, U.S. Court: Mass Surveillance Programme Exposed by Snowden was Illegal, Reuters (Sep. 3, 2020, 3:50 AM), https://www.reuters.com/article/us-usa-nsa-spying-idUSKBN25T3CK.

[xxviii] Aaron Holmes, The NSA phone-spying programme exposed by Edward Snowden didn’t stop a single terrorist attack, federal judge finds, Business Insider (Sep. 3, 2020, 4:00 PM), https://www.businessinsider.in/tech/news/the-nsa-phone-spying-program-exposed-by-edward-snowden-didnt-stop-a-single-terrorist-attack-federal-judge-finds/articleshow/77901849.cms.

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