Rule of law
Hounding tech platforms can’t be the solution
The Information Technology (Intermediary Guidelines and Digital Media Ethics Codes) Rules 2021, or the IT Rules 2021, have triggered multiple legal challenges, and attracted international criticism for being in violation of universal human rights. The rules have led to a confrontation between Twitter and the government. Other major platforms — such as Google, Facebook, and Whatsapp — have complied with the requirements of putting in place an India-based “chief compliance officer”, a grievance officer, and a “24x7 point of contact” to deal with India-related content, while challenging the legal validity. However, Twitter has delayed full compliance, though it claims it has made interim appointments. It is answering queries from the parliamentary committee on information technology, and it has received summons from the UP Police in connection with a case of “fake news”.
The Minister for Electronics and Information Technology has also asserted the platform has lost its “safe harbour” status as an intermediary and may be held liable for content posted on it. The IT Rules face multiple challenges. Whatsapp has filed a petition in the Delhi High Court, alleging the rules breached the right to privacy by demanding it break end-to-encryption. Google has also approached the Delhi High Court, challenging the definition of media platform. Online media channels like The Wire and The Quint have challenged the rules in another petition that, among other things, claims they go beyond the scope of the parent legislation, the Information Technology Act of 2000. The Kerala High Court has admitted a petition from the online portal Live Law, which says the rules place arbitrary, vague, and disproportionate restrictions on digital news media. The court has ordered that no coercive action be taken until the petition is heard.
Further, three UN special rapporteurs for human rights have written to the government, requesting the review and withdrawal of key aspects. Their letter states provisions relating to traceability of first originator, intermediary liability, and executive oversight of digital media content all violate the rights to privacy and to freedom of speech. They also point out the vagueness of terms like “fake news” and “content that may mislead or cause any injury”, since these are not rigorous definitions and could be utilised to have a chilling effect on independent media. Freedom of expression and right to privacy are both guaranteed by the Constitution. These rights are also enshrined in the International Covenant on Civil and Political Rights, to which the prime minister recently reaffirmed the Indian government’s commitment. The rules are clearly very broad in definition — any online platform with over five million Indian users is included, regardless of what it does. They also impose heavy-handed controls on content, which intermediaries can be told to take down on the basis of vaguely defined terms. They violate privacy in demanding encryption be broken to determine originators of messages. No democratic nation imposes such sweeping controls.
The government should reconsider these rules at a time when it is asserting a commitment to human rights at international forums. The manner in which the rules have been framed is also problematic. In a democracy, it must be asked whether the governance of global public platforms can be left in the hands of a few government officials. It is to be hoped that courts will take a holistic view of the matter and the issue will be settled in a way that freedom of speech is not threatened by the government of the day.