INFORMATION TECHNOLOGY RULES, 2021- MURDERER OF DIGITAL MEDIA
Author: Rohit Dhingra, IV year of BBA LLB (Hons.) spz in Corporate Laws from University of Petroleum and Energy Studies
The Supreme Court of India in 2018, had observed that the Government of India should frame necessary guidelines which could eliminate child pornography, rape and gang rape imageries, videos and websites in content hosting platforms and other such applications. In due diligence, the government of India came up with the idea to form a new committee to lay down some new IT rules. The over-the-top (OTT) platforms were brought under the ambit of the Ministry of Information and Broadcasting by the government.
WHAT ARE THE NEW IT RULES OF 2021
Based on the user count on the social media platform intermediaries, it has been divided into two groups, i.e. Social media intermediaries and Significant social media intermediaries. The rules qua such intermediaries primarily issue dictates on what privacy policies and rules and regulations these intermediaries possess and the possible action which could be taken in situations of privacy policy violation.
An intermediary needs to publish its privacy policies or rules and regulations prominently on either its application or website or both. Some noteworthy examples of information wherein it has resulted in grievance and is unacceptable according to the government are as follows:[1]
● Is either defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing based on gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or other contrary to the laws of India.
● Deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading but which may reasonably be discerned as a fact.
● Threatens the unity, integrity, defence, security or sovereignty of India, relations with foreign states or public order, averts investigation of an offence, or causes incitement to the commission of any cognizable offence, or is insulting any foreign states.
● Is patently false, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gains or to cause injuries to any person.
The Rules have specified the actions required to be taken by intermediaries and also specified timelines to safeguard the offending content by the intermediaries. The Rules mention 180 days for which the offending content must be saved or preserved for investigating purposes.[2] Further, it clarifies that the content belonging to such communications need not be revealed, and if less intrusive means are available, such orders may not be passed.
It also states that intermediaries must strive to deploy automated tools which are capable of identifying information depicting any act or simulation in any form pointing to rape, child sexual abuse or conduct, whether explicit or implicit. These measures must be proportional having regard to the interests of free speech and expression, the privacy of the users on the resources of such intermediary, including interests protected through the appropriate use of technical measures.
The new Rules for intermediaries put into action when anyone expressing dissent or an opinion that is contrary to the government is being prosecuted for sedition or being subject to charges under the Unlawful Activities (Prevention) Act (UAPA). FIR’s are being lodged left, right, up, down and centre, in what is an attempt to stifle free debate and discussion. Therefore, these Rules must be seen with an eye of suspicion, meant to be bringing order to a medium that is rather not easy to control. These are instruments in the government’s hands to use law enforcement agencies to go after individuals conveying thoughts and opinions opposed to their interests. The inclusion of inclusive definitions gives too much freeway to the government to add more categories at a later stage and increase the scope of the Rules at its convenience. Further, automated tools screening the content of messages to track down offending content will also bring an end to end-to-end encryption. This signified that a system needs to be put up by the intermediary with the ability to go over into the content of messages. It is unclear if for a system to weed out specific content at all and ignore the rest altogether is technically feasible; this is a purely technological solution best left to technical experts.
RECENT ISSUE THAT HAS RISEN DUE TO THE CONTROVERSIAL ACT
The controversial rules, named Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 has resulted in a dispute between the FOUNDATION FOR INDEPENDENT JOURNALISM & ORS and UNION OF INDIA.
To understand the real subject, we need to look into some details-
The present case challenges the above-mentioned Act as being ultra vires the Information Technology Act, 2000 i.e. the parent Act. The reason behind challenging its constitutionality is that the present Act sets up a classification of ‘publishers of news and current affairs content’ as a part of ‘digital media’ to regulate the news portals under Part III of the Act which is currently beyond the scope of the parent Act.
A similar issue was discussed in the case of Shreya Singhal v. Union of India[3], where Section 69-A was under the hammer. According to the Section,
“S. 69-A Power to issue directions for blocking for public access of any information through any computer resource. –
1. Where the Central Government or any of its officers specially authorised by it in this context is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
2. The procedure and safeguards subject to which such blocking for access by the public may be carried out shall be such as may be prescribed.
3. The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.”[4]
The Supreme Court in this case recognized that the scope of the section is limited to a well-defined class of entities called ‘intermediaries’, and ‘Government agencies’. Further, in Shreya Singhal v Union Of India, an offence under Section 66-A penalising content that is ‘offensive’ or causes ‘annoyance’ was knocked down by the Supreme Court on grounds of being vague. This Supreme Court judgement clearly shows that the IT Rules, 2021 goes far beyond the power vested in the parent Act as it seeks to regulate digital news media by imposing a ‘Code of Ethics’ consisting of vague terms like ‘half-truths’, ‘good taste’, ‘decency’, etc. and handing over the entire power of its regulation to the Central Government which is per se against the concept of democracy.
The current issue,
FOUNDATION FOR INDEPENDENT JOURNALISM & ORS V. UNION OF INDIA (2021)
● The constitutionality of the IT Rules, 2021 was challenged because the present Act goes beyond the scope of the parent act, so far as the present rules apply to the publishers of news and current affairs content and would be regulated by Part III i.e. The Impugned Part of the Act.
● Through this Act, the Government has a latent objective of dictating the terms of content to the digital news portals by a pseudo-parameter of ‘Code of Ethics’.
● The IT Rules, 2021 introduce two distinct sets of regulations: firstly, the intermediaries should follow the ‘due-diligence norms’ vested in Part II of the Rules and secondly, the ‘Code of Ethics’ should be adhered by the publishers in furtherance to the three-tier compliance mechanism vested in Part III of the Rules.
● Now, Part III of the Rules that are challenged by the writ petition, consists of two distinct sets of ‘publishers’-
(1) publishers of news and current affairs content.
(2) publishers of online curated content
● Both these categories have been newly inserted in the present Rules and making them specifically subjected to Part III of the Rules, clearly gives a message of supremacy of the Government to the entire nation.
● Currently, the Delhi High Court has asked the Central Government to file a plea regarding the petition.
Keeping in mind my research and the current issue, the IT Rules, 2021 is ultra vires to the parent Act due to these reasons
(1) It tries to legislate the conduct of the entities which is not within the scope of the parent act.
(2) Instead of giving a refreshing change, the present Rules have introduced completely new concepts and regulations that go far beyond the powers vested in the parent Act.
(3) By enacting these rules, the Government is trying to dictate and regulate the digital media content based on spine-less and subjective grounds which the Supreme Court had already declared void by striking down Section 66A of the parent Act in the case of Shreya Singhal v. Union of India.
[1] Information Technology Rules (Intermediary Guidelines and Digital media Ethics Code), 2021, Rule 3
[2] Information Technology Rules (Intermediary Guidelines and Digital media Ethics Code), 2021, Rule 3(1)(g)
[3] (2015) 5 SCC 1
[4] The Information Technology Act, 2000, §69 A