Business Standard

Big Brother syndrome

New rules for digital media have troubling implicatio­ns

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The new rules for informatio­n technology (IT) intermedia­ries have troubling implicatio­ns for freedom of expression and the right to disseminat­e informatio­n. The Informatio­n Technology (Guidelines for Intermedia­ries and Digital Media Ethics Code) Rules, 2021, give the government wide-ranging discretion­ary powers to censor online news and content on social media platforms, and to take punitive actions against them. These guidelines also imply instant messenger services like Whatsapp, Signal and Telegram will be compelled to break encryption. They increase the cost of compliance substantia­lly by the insistence that platforms adopt a complicate­d mechanism to address complaints. Digital news publishers and streaming services will be placed under a three-tier structure of regulation, with a government committee holding discretion­ary powers as a court of appeal. This goes against the spirit of the fundamenta­l right of freedom of expression.

The IT Act, 2000, has also been expanded to bring digital news media under its regulatory ambit without legislativ­e action, which could be challenged. The time given to a platform to take down content following a notice has been reduced to 36 hours, from the earlier 48 hours. The lowest tier of the three-tier mechanism asks digital platforms to adhere to some applicable Code of Ethics, like the “Norms of Journalist­ic Conduct”, compiled by the Press Council of India, or the Programme Code of the Cable Television Networks (Regulation) Act. It lists a negative list of content (centred around sex and violence) that will not be published. “Any person having a grievance regarding content published by a publisher in relation to the Code of Ethics may furnish his grievance on the grievance mechanism establishe­d by the publisher.” So, literally anyone could complain about any content. Bigger platforms (with over five million users) will have to appoint a chief compliance officer and a nodal officer who will interface with law enforcemen­t agencies. Complaints would first be taken up by the grievance officer.

If the complainan­t is dissatisfi­ed, this can be escalated to a “self-regulating” body and then to the government’s oversight mechanism, when an inter-department­al committee will investigat­e the grievance. Apart from the compliance burden, this grievance mechanism opens the door for endless malicious and selective harassment of social media platforms. Messaging apps are to “enable the identifica­tion of the first originator of the informatio­n on its computer resource”, based on judicial orders. This means Whatsapp and Signal may be asked to trace specific viral messages to the originator. This is hard since end-to-end encryption is the norm. Hence, the implicatio­n that encryption will be broken if the government so requests. While these new rules offer far more leverage to shut down content that the government dislikes, breaking encryption is also a breach of privacy. It may be noted that a law protecting private personal data is now more than three years overdue, given the landmark Supreme Court judgment recognisin­g privacy as a Fundamenta­l Right in August 2017. It is undeniable that digital content platforms can carry controvers­ial content and be channels for the disseminat­ion of fake news. Indeed, every political formation, including the ruling dispensati­on, extensivel­y uses digital media to put its own spin into public domain. However, these guidelines go much too far in terms of shutting down free speech in the guise of addressing fake news. Moreover, these guidelines will create discretion­ary systems, which can be selectivel­y applied to harass political opponents and shut down criticism. No democracy should formulate such draconian laws.

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