Truth Pro Foundation India (TPFI), the non-profit company that runs independent Kannada news portal Pratidhvani, has moved the Karnataka High Court challenging the recently notified ‘Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules)’ which seeks to regulate digital content in the country. In its petition the news portal observed that these new regulatory rules go beyond the existing Information Technology Act, 2000. The petition noted,
In the present case, though the parent act deals with electronic data/record, the object and purpose of the parent act, is primarily to provide for legal recognition of such electronic data/record, recognise means of electronic communication, authenticate and establish conditions in which electronic data/record could be considered as evidence, and to recognise offences committed through the use of computer resources. Therefore, the parent act does not recognise digital news media as a separate category of entity and does not seek to subject them or their content to any set of special regulations.
The IT rules, 2021 notified by the government on 25 February 2021 treat the companies running social media and OTT platforms as ‘intermediaries’ and express the hope that they would self-regulate. Announcing the new measures, Ravishankar Prasad, Minister for Information Technology, told a press conference that, “We have not made any new law. We have just made new rules under the existing IT Act. We are confident that the intermediary platforms would follow these rules. (Our) focus is on self-regulation.” In the same conference the Minister invited the global tech giants to India to make money.
As Pramod Ranjan wrote in gaurilankeshnews.com recently, under these new rules, the social media platforms would be obliged to share with the government the identity of the person who first posted an allegedly objectionable or mischievous message i.e. the original writer of the message would have to be named so that action can be taken against him or her. And this will include those who post messages hurtful to religious feelings and critical of government policies in a way that threatens the unity, integrity, defence and sovereignty of the country. Clearly, posts calling for participation in or support to any movement or protest can also be included in this category.
Why are the digital news portals objecting the new rules?
Several online media platforms like Pratidhvani have already approached High Courts across the country. According to the Bar and Bench report the Delhi High Court has sought response from the central government to a petition filed by The Quint; and The Kerala High Court has given a temporary relief to Live Law, a legal news portal which also has challenged these new set of rules.
The digital news media platforms have been relentlessly working towards busting the fake news culture that is in rise and also have been watch dogs of the functioning of the executive. We ought to remember that the rise of these alternative news media is directly associated with the transformation of the mainstream media houses into propaganda tools of the ruling dispensation. However it must be noted that there exist a large number of these digital news portals that are pro-establishment. The new rules, however, are aimed to control the former, according to those who are objecting them. There is a valid reason for such an argument. Several digital news platforms like the Alt News, News Click, The Wire, The Quint etc have faced the wrath of the government in the form of Enforcement Directorate raids on their offices; civil suits against the editors and writers etc. Now with the new rules that are exclusively meant to control these platforms would legitimise these crackdowns orchestrated by the government.
The Intermediary Rules have been notified under the Information Technology Act, 2020, which was enacted to provide legal recognition for electronic transactions, to facilitate electronic filing of documents with the Government agencies and for other similar purposes. The Act has certain provisions relating to intermediaries (for instance Facebook, Twitter, YouTube) including Section 79, whereby an intermediary is protected from liability in respect of third party information, which is made available by them. (For instance, if someone makes a hateful post on twitter, Twitter cannot be prosecuted for the same).
Therefore the IT act does not even have in its scope, the powers to regulate media. However according to these new rules this immunity will not be available to these intermediaries if they refuse to follow government orders asking them to delete a particular content or if they store the deleted content in their servers or in any other form. Thus, even under the new rules the liability of these platforms is limited to obeying the orders of the government (and destroying forever any content which the government dislikes). Even under the new rules, as Ranjan writes, ‘they are not required to adhere to the spirit of the Indian Constitution and the country’s penal codes and they would not be held guilty on that count.’
The new rules do not even refer to protecting the privacy of the people at a time when privacy has become a global issue. They also do not make the intermediary platforms liable for making payments for using the content generated by local media institutions.
More than two hundred individuals and organisations combined have written an open letter to Prakash Javadekar, Union Minister for Information and Broadcasting Government of India and Ravi Shankar Prasad, Union Minister for Electronics & Information Technology, Government of India. This letter notes,
These illegal, unconstitutional Rules empower the executive to pass directions including to block, modify and delete content. No judicial order is required before content is mandated to be removed. The power to order removal of content is in the exclusive hands of the Executive. In effect those who are most affected by the news will now decide whether the news ought to be published at all. This is an attack on the fundamental principle of separation of powers and on the fourth pillar of Indian democracy, the media.
The letter further said, ‘Given the far reaching and anti-constitutional implications of the Rules both on the digital media as well as the average user of the Internet, it was incumbent upon the Ministry to conduct wide consultations in vernacular languages with members of the public prior to their notification. However, the draft Rules were never made available to the public for comments, let alone was any consultation conducted.’