by Sudhanva Kumar
Evolution of the Act
The birth of the IT Act (‘Act’) happened to be after the United Nations resolution on 30th January, 1997 to recognise and adopt the practices of electronic commerce. This Act aided in validating and legalizing the e-commerce transactions in India as expressed in the Preamble of this legislature. As indicated by the Preamble of this legislation, it is intended for aiding in validating and legalizing e-commerce transactions in India. While this being the primary purpose, the legislature, through this law, had also found it appreciable to regulate the material of publication and the type of communication that may be permissible through electronic modes. The regulations came to be strengthened against obscenity, intermediary liabilities and safeguarding only after the case of Avinash Bajaj v. State (NCT of Delhi)[1] which led to the amendment of the Act. However, even the amended Act was not supplemented with sufficient rules and guidelines to monitor the grievances of the users. While the 2011 Rules and Guidelines (‘2011 Rules’) did set a tone for the nature of due diligence and conduct of online platforms and such other cyber usage facilities, yet the evolving use of the internet and ever-developing platforms of content and interaction, called for the government to take up exigent steps to lay down the policy in this regard.
The awakening of the government after a decade long period, is only as response to the timely-questions posed to them by the Supreme Court. The Court’s observation often noted the lack of policy on condemning child pornography, transmitting rape on these sites and also the frenzied use of these platforms in spreading fake news. Many over-the-top services had been bypassing the censorship and other regulations in streaming content; a few had versions of calling the content artistic creativity, while other sites were purely used to share explicit material. The 2021 Rules (‘Rules’) are pedantically trying to eliminate such material being publicized and have taken a three-prong approach: (i) identifying and defining who are these intermediaries and digital media platforms; (ii) due diligence to be prescribed to these bodies and; (iii) setting up grievance redressal mechanisms.
Key features of the current Rules
A cursory glance at these rules would give the impression that these rules are only trying to enhance the regulations set out in the 2011 Rules. This may certainly be true, but there arises certain key features which must be considered. The top of the list being the inclusion of publishers of news and current affairs and online curated content into these rules under Rule 2 (t) & (u); and also, the distinction of Social Media intermediaries (‘SMI’s’) and Significant Social Media intermediaries (‘SSMI’s’) under Rule 2 (v) & (w). Elaborating on the previously contested issue under the 2011 Rules, these rules make it clear under Rule 3 (d) that when an intermediary has actual knowledge, “through court order”, it will have to remove and not host such material of the described nature, while leaving the opportunity open for the intermediaries, upon voluntary basis or upon grievance raised, to may also take-down such material. Further branching from the strategy to have a grievance officer, the significant social media intermediaries have been asked to engage the services of a Chief Compliance Officer and Nodal Contact Person to oversee the compliance with the statute under Rule 4. The current rules run the risk of wishfully violating the people’s Right to Privacy as under Rule 6 the information/communication made on intermediaries is susceptible to the assessment by the government authorities (if no such policy of the intermediary is in play saying otherwise). Lastly, under Rule 9 it establishes a three–levelled regulatory mechanism, which in all practical terms come to perform the same functions as reflected in Rules 11,12 and 13.
Regulations on the Social Media Intermediaries
On inspection of these key features of the Rules, we find that there has been much overreach or unrealistic practices prescribed along with over-working the bodies. To attest to this claim is the recent definition and distinction provided by the rules to classify SMI’s. Since the SMI’s are platforms that enable interaction between two or more parties and allows other certain activities, such over-classification could then again engulf even email platforms, video conference services and audio interactive sites into its reigns and ask them to conduct due-diligence. Additionally, the distinction between SSMI’s and SMI’s is one originating without any rationale, when under Rule 6, the legislature could once again demand any and all non-SSMI’s to conduct similar due-diligence.
The mechanism to employ a Chief Compliance Officer or Nodal Contact Person might be a step toward the vigilant application of the Rules and addressing any grievances of the users. This may be one of the most suitable approaches for the authorities to reach out to the intermediaries and hold some accountability on the intermediaries to conduct themselves responsibly. However, what deranges this understanding is the additional burden on the SSMI’s to identify the first originator of the message within India as set out under Rule 4 (2), while also keeping the process of verification of the user only voluntary under Rule 4 (7). The users, however, are protected from any privacy violation, since the intermediary need not disclose the contents of any electronic message, any other information related to the first originator, or any information related to its other users. However, if we pause to examine the feasibility of this procedure, the dubiety is that would the intermediaries have to store the information, and if so, what would the period of retention of the data be? In general practice, these service providers do not store the information for a long duration owing to the principle on data minimization. Since such is the case, there is no means for the intermediaries to trace the first originator of the message.
Over-expectations from the intermediaries
Further, the current Rule also guides the intermediaries to develop and utilize such technologies which could automatically identify and remove substances which are described to be of prohibitory nature or similar to those which had previously been taken down by the body. It could only be imagined that not all intermediaries would have access to such sophisticated technology. The Rules may have idealized one certain intermediary’s technology, which might or might not be patented, upon all others. Even if this process comes into use by all, being internally regulated and developed, the rule does not envisage a mechanism for the user to contest whether the material was intended or was of such nature. On occasions, this approach could have an effect of giving an ultimatum to the users and infringe their right to speech. Overall, these policies create few new offices, who must ensure grievances are resolved, and when met with enquiries or orders of takedowns, they must facilitate the same.
Regulations on Publishers and curated audio-visual content
While recognising the pernicious use of the internet to spread fake news and narratives that have disastrous consequences, the legislature has identified publishers of (i) news and current affairs content (online) (ii) curated audio-visual content, to be regulated. Nevertheless, as pointed out earlier the intent of the Act itself was to serve the purpose of validating e-commerce transactions, documentation and electronic signatures. While there are other specific statutes already in place to regulate the press and its publication, such as the Press Council Act, 1978, the Press and Registration of Books Act, 1867, the Cable Television Networks (Regulation) Act, 1995 , the Cable Television Networks (Regulation) Act, 1995, and the Cinematograph Act, 1952, the question posed is whether regulating the freedom of press and speech under the domain of the Act, would or would not amount to legislative overreaching.
Even if we were to overlook the aforesaid question, and examine the guidelines prescribed for these publishers, the Rules places three levels of authority to regulate the publications: (i) self-regulation by publishers, (ii) self-regulation by associations of publishers, and (iii) oversight by the Central Government. The first two levels perform overlapping functions and essentially the second level may be called as an authority to appeal the decision of the self-regulation of the publishers and an authority which assists the self-regulation of the publishers to meet the prescribed Code. At both the levels, they are allowed to address grievances, which must be addressed within fifteen days and if not addressed, the level above shall take up the matter and resolve it at the earliest. The third and the final level being the oversight of the ministry over the work and functions of the other two regulating bodies, and to set out a charter for these bodies to function upon. This level may also refer matters to an inter-departmental committee on escalation or suo moto.
Legislative Overarch
The Code of Ethics for publishers of news and current affairs prescribes that the Norms of Journalistic Conduct of the Press Council of India under the Press Council Act, 1978 and Programme Code under section 5 of the Cable Television Networks Regulation) Act, 1995 shall be followed. The online content curators must comply with content classification according to age-appropriate categories and set mechanisms to verify the age. Further, these curators must exercise due discretion in featuring content affecting the sovereignty and integrity of India, national security, disturb public order and such other prescribed topics, which the usual cinema makers perform.
Idea’s worth reconsidering
Taking note of such measures for regulation, the contentions that must be raised are as follows: Firstly, whether such mechanisms against publishers mitigate the issue of spreading of false narratives? Secondly, if they were to regulate the online publishers to the standard code of conduct, then why create additional mechanisms when there are already adjudicatory bodies in place? Thirdly, does rating and classification of the movie and the current age verification process restrict viewing according to the specified categories?
The calling attention motion on ‘Misuse of Social Media platforms and spreading of fake news’ admitted in the Rajya Sabha on July 26, 2018, stands in support of the former contention. Although certain sites (publishers – if we hold them to the definition of the Rules) may certainly be the originators of such content, the SMI’s play a catalytic role for the widespread sharing of such material by its users. Thus, the modalities must be worked to cauterize the spread of fake news on such platforms, which was not elaborated in the Rules for the SMI’s or SSMI’s.
While expounding on the second contention, it must duly be noted that the Press Council of India (PCI) is a statutory body, which regulates the press and oversees the compliance of the code of conduct of the mainstream press in India. The additional regulating bodies formed through these Rules negate the powers of such a body and create undue work for the publishers.
In response to the third contention, the current classification and restrictions would simply fail to restrain viewing of certain category content by the younger ages, the reason being, the viewership of these content happens at their own private spaces, were no vigilance team can be permitted to access the space and verify the age of the viewers. The Online content publishers may only come up with certain controls in their interface to advise their viewers.
The framers of the Rules have also concocted a mechanism for expedient takedowns of the content, allowing authorities on certain occasions as enumerated under Rule 16 to bypass all the other procedures. This mechanism only allows the review of the inter-department committee to examine whether the emergent takedown of the content order be revoked and continued. Such a process perpetually ignores hearing the parties in question or the publishers and demands the fulfilment of the order. Only future application of this rule would confirm the apprehension of the misuse of this specific rule or whether the authorities have made such a call with reasonable deliberation.
The curtailment of speech and expression orders!
Amongst the aforesaid Rules, the most critical aspect of the Rules is the takedown orders and the issue of compliance with the same. The aforesaid due-diligence process is to ensure these intermediaries can safeguard their protection against the liabilities as provisioned under Section 79 of the Act. The Rules have retained the previous policy for the intermediaries to respond/take down the content no later than thirty-six hours of notice of the order and keep such data for a period of hundred and eighty days for the purpose of investigation, which would also be applicable on voluntary removal of such content. The Rules still do not provide an opportunity either to the user or the intermediary to contest such an order before initiating the takedown. Additionally, the non-compliance with the Rules by the intermediary does not specifically any punishments under the Rules, but such an intermediary which does not comply shall lose the protection under Section 79 and could be held for punishment under any law for the time being in force including in accordance with the provisions of the IT Act and the Indian Penal Code.
Legal battle of the Regulation
Due to the overarching characteristics, the Rules have been challenged before various High Courts. The Rules not only jeopardize infringing the Freedom of Speech but are also alleged to have been delegated beyond the scope of the Act. A total of more than 17 cases have been filed across the High Courts, each passing different reliefs and making different observations, thus, the Government had come to seek the transfer of these cases before the Supreme Court. It is also the case that the petitioners in one of the cases even have contended that –
“Apart from a single provision that enables the blocking of content available online on specified grounds, there is nothing in the IT Act that seeks to regulate content, in particular, the content of news publishers.”
While the Bombay High Court had come to grant the interim relief of staying the Rules 9 (1) & (3) which prescribe the code of ethics and establishment of the grievance redressal mechanism on the rationale that “if the publishers are made to comply with the norms under the Rule it would be infringement of the guarantee of Freedom of Speech under Article 19 (a) of the Constitution, and further that the Rule is not in conformity with the Statute (not assisting in performing the objective of the Statute)”. Nonetheless, noting that Rule 14 is traceable to assist in the performance of the Act under Section 69A to have the Power to issue directions for blocking for public access of any information through any computer resource. Taking a similar Stand, the Kerala High Court had asked the Centre not to take any precipitative measure against Live Law for non-compliance of the Rules.
The Government before the Delhi High Court had pleaded “that the IT Rules (2021) does not have a chilling effect on free speech and if the intermediaries are allowed to non-comply with the Rules, then it would not be possible for them to trace the first originator of the message and penalize them for spreading fake news”. The government also made averments on the grounds that the “that the rule protects the dignity of the person whose pictures on the computer resource negatively impact his/her dignity”. Currently, the Delhi High Court has deferred the matters without granting any interim relief to the petitioners, however, the deference, possibly indicates the Court’s indulgence to grant relief to the Petitioners.
The Madras High Court, being the first to deal with the challenge against the validity of Part II of the Rules (the part governing digital intermediaries). The Court came to apply the test established in the Shreya Singhal Case[2] which had held that “any law seeking to impose a restriction on the freedom of speech can only pass muster if it is proximately related to any of the eight subject matters set out in Article 19(2)”. Relying upon such distinction the Court in the interim relief noted that Rules 3 and 7 are quite distant from the grounds for reasonable restrictions under Article 19 (2) and noted that “there is a genuine apprehension, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen”. The Court also came to appreciate the interim relief granted by the Bombay High Court and also stayed Rule 9, calling the relief to have a pan–India effect.
My take on the Policies
Pursuant to the aforesaid observations made about the rules, it is abundantly clear that what may have been intended to be a soft-touch, self-regulatory mechanism to mitigate all the foreseen misuses, has rather had the opposite effect. The current Rules are being termed overarching, unrealistic, and having minimal effect on the implementation of its guidelines on the intermediaries and the users. The Rules are delegating work beyond its scope and intruding with many fundamental rights to say the least. The Rules being designed unilaterally, without consulting with the stakeholders and understanding the ground reality, have not been effective in addressing the misuse of the online space. Some may even draw the conclusion that the Rules are only heavily worded to mitigate one particular issue that is obscenity or explicit content to satisfy the Supreme Court that there exists some regulation on the matter, but has been ineffective in solving the other threats.
[1] 116 (2005) DLT 427
The Digital Future 