The new governmental guidelines to regulate digital content raise a fundamental legal and ethical question: are they contra constitutional? For many advocates of the freedom of expression, the guidelines virtually undermine the enabling provisions of Article 19 of the Constitution and weaponise the restrictive clause of reasonable restriction, without really spelling out what constitutes reasonable restriction.
Under the guidelines, it appears as if the citizens have been empowered and that there is now a fair grievance redressal mechanism for users of digital platforms. The guidelines include social media sites, messaging apps, over-the-top streaming services (popularly known as OTT services), and digital news publishers.
Tricky new rule
Some tend to confuse the grievance redressal officers to be appointed under the new directive with a news ombudsman and argue that the government has come up with a “soft touch” self-regulatory mechanism. The idea of self-regulation is to have a visible mechanism to correct errors that creep into the public sphere despite the existence of a multi-tiered gate-keeping process. There is an accepted value system, defined in codes developed over a period of nearly a century.
However, while looking at the details of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021, it is clear that there is executive overreach and this is not an attempt to empower citizen’s right to free speech and free expression. The tricky new rule states that big social media companies will have to take down unlawful content within a specific time frame of being served either a court order or notice by an appropriate government agency. There has been no satisfactory answer from the government on what basis it issues a takedown instruction, which is always euphemistically called a takedown request, to major social media platforms.
Since Shreya Singhal v. Union of India (2015), the debate over the constitutionality of the content takedown regime under Section 69A of the IT Act (and the Blocking Rules issued under it) has been raging. For instance, constitutional lawyer Gautam Bhatia has pointed out three important elements in the ‘Blocking Rules’. One, the Rules do not provide for an appeals process. Two, there is a contradiction between Rule 15 that requires that Designated Officer to maintain records of blocking requests and actions taken and Rule 16 that stipulates that “strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof.” Three, for the last five years, he has been arguing that there is need to file a review petition to seek clarity on a host of issues arising out of this judgment. The new rules pave the way for more opacity and secrecy rather than transparency and accountability.
Unbridled power for the executive
If the earlier regulatory framework was murky with many lines blurred and the onus of responsibility constantly oscillating between the originator and the intermediaries, the new guidelines give the executive unbridled power without any checks and balances. From arbitrary takedown notices to selective shutting down of Internet services, the executive has been arming itself against the citizens, and the two important estates of the democracy — the legislature and the judiciary — are not sufficiently reflecting on the question of overreach. In a polarised environment, an informed debate is restricted to some print and online organisations.
While presenting the guidelines, Electronics and Information Technology Minister Ravi Shankar Prasad said the guidelines constituted a “soft touch oversight” mechanism to deal with issues such as the persistent spread of fake news and other misinformation. He added: “Social media is welcome to do business in India… they have got good business and have also empowered ordinary Indians. But it is very important that crores of social media users be given a proper forum for resolution of their grievances in a time bound manner against the abuse and misuse of social media.” This reminded me of the good old saying that ‘the road to hell is paved with good intentions’.
For those who are working on issues relating to individual privacy, the introduction of end-to-end encryption was seen as a technical solution to a truly vexatious issue. However, under the new rule, social media intermediaries must enable tracing of the originator of information on their platform if required by a competent authority. This is indeed a new panopticon.