Will India's New Information Technology Rules Muzzle Free Speech?

Will India's New Information Technology Rules Muzzle Free Speech?
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 issued by the government of India, have stirred up a lot of controversy in India.

The government of India has issued a statement that "Amidst growing concerns around lack of transparency, accountability and rights of users related to digital media and after elaborate consultation with the public and stakeholders, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers under section 87 (2) of the Information Technology Act, 2000 and in supersession of the earlier Information Technology (Intermediary Guidelines) Rules 2011."

While supporters of these rules say that there was an urgent need for some regulation of the social media, particularly IT giants like Twitter, Facebook, Google, Youtube, WhatsApp, etc, its critics say that the real purpose was to muzzle the social media which was increasingly becoming critical of the Indian Government e.g. over its alleged mishandling of the covid crisis, the farmers agitation, communal divisive politics, etc.

There can be no genuine objection to regulation of the social media. Every social activity has to be, to some extent, regulated in the public interest. There can be no such thing as absolute freedom. Men live in society, not in isolation. They cannot be permitted to do acts which harm the public interest. So doing acts like endangering the security of the country e.g. by encouraging terrorist activities, defamation, or spreading fake news which can harm society, or encouraging hate, violence, pornography, pedophilia, drug and women's abuse, etc can certainly be prohibited.

Where apprehensions arise, however, is about the true motivation of the government in issuing these rules at this juncture.
Section 79 of the Information Technology Act, 2000 states :
" Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him ".
This provision provided a 'safe harbour' to intermediaries such as the ones above-mentioned.

However, section 79(1) was made subject to section 79(2)(c) which requires that:
" the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf ".
Section 79(1) was also subject to section 79(3) which states :

"The provisions of sub-section (1) shall not apply if-
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act ".
Rule 7 of the new rules states that the safe harbour in section 79 is not available to an intermediary which violates the rules. Hence what was given by one hand, has been taken away by another.
The new rules of 2021 have evidently be made under section 87(2) of the IT Act and section 79(2)(c) which permits the Central Government to issue guidelines.
These new rules have made several drastic modifications to the regulatory framework existing till now under the Indian Information Technology Act, 2000.

A new classification of ' Significant Social Media Intermediaries ' has been introduced by these new rules, which means intermediaries like Google, Facebook, Twitter and WhatsApp which have over 5 million registered users. These intermediaries are now obliged to create a grievance redressal mechanism by appointing a grievance redressal officer, a nodal contact and a Chief Compliance Officer, who has to coordinate with a government official.

The Significant Social Media Intermediaries have to comply with orders and regulations issued by the government to prevent ' material risk of harm ' and maintain ' public order ', both vague concepts susceptible to any meaning the government assigns to them. The second proviso to Rule 3(d) requires the intermediary to block access to any information the Central Government regards objectionable within 36 hours of the government's order.

Some of the requirements in rule 3 are that intermediaries must ensure against any publication which :
" Is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or 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 in nature but which may reasonably be perceived as a fact.
Threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States or public order, or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any foreign States.

Is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person ".

But what is defamatory or obscene are highly contentious matters.

Also, what threatens the integrity or security of the country ? Nowadays any criticism of the government is often regarded anti-national, and therefore threatening the integrity and security of India, inviting arrest and charges under the sedition law or the Unlawful Activities Prevention Act, which nowadays is done left, right, and centre.

A very controversial provision in the rules is Rule 4(2) which requires disclosure by the messaging platform of the identity of the first originator of the message.

One can understand requiring deletion of an unlawful or highly objectionable message, but to require disclosure of the identity of the first originator is like asking a journalist to disclose the source of his news, something no reputed journalist would do.
There are several other provisions in the new rules to which one may take exception, particularly in the light of the Constitution

Bench decision of the Supreme Court in Justice K.S. Puttaswamy vs Union of India which held the right to privacy to be included in Article 21 of the Constitution of India.

The IT giants have agreed to comply with the new rules, evidently because they did not want to lose the huge Indian market, but time alone will tell whether the rules will suppress free speech and muzzle the social media in India, the way the print and broadcast media have already been largely gagged.

Markandey Katju is a former judge of the Supreme Court of India. He was also the Chairman of the Press Council of India.