“The end of law is not to abolish or restrain, but to preserve and enlarge freedom.” – John Locke
The introduction of the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (Hereinafter referred to as “2021 Rules”) has wreaked havoc in the country as it concerns the functioning of the nation’s most widely used Social Media Platforms and seeks to curtail the ‘freedom of the press’, which is crucial to the functioning of any democracy. Under the pretense of supporting self-regulation, and making laws that are ‘progressive, liberal and contemporaneous’, an attempt has been made to limit the freedom of speech on digital media. The new rules for digital media intermediaries, such as news portals, social media, and OTT platforms, are not only ambiguous and vague in terms of what type of content may be penalized, but also restrictive in the purest sense.
Intermediaries are entities that store or transmit data on behalf of other persons. Intermediaries include internet or telecom service providers, online marketplaces, and social media platforms. The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 have been introduced to regulate the otherwise loosely regulated data protection policy in force and create a legal framework for regulating the working of these intermediaries. Provisions for conducting due diligence, providing certain social media entities the status of significant social media intermediaries, and enabling the identification of the first originator in case of messaging services, have been subjects of discussion and have caused immense backlash since their inception.
The present rules are a case of unbridled delegation of legislation in such a manner that they blatantly go against the rule established by the apex in the case of Addl. District Magistrate (Rev.) Delhi Admn. v. Siri Ram. It was stated that rules are subordinate legislation and cannot go beyond the ambit and scope of the main enactment. If the delegated legislation goes beyond the scope of the parent act, it is liable to be struck down. The Supreme Court has made its stance amply clear that the rules must be consistent with the purposes and provisions of the parent Act; otherwise, the legislation becomes ultra vires and is subject to judicial scrutiny. The rules have established a non-judicial adjudicatory framework for resolving complaints about content published by Digital News Media and OTTs. They have also established an adjudicatory body known as the ‘oversight committee.’ This is even though the IT Act does not expressly authorize the government to do so.
It is crucial to note here that the Apex court struck down Section 66A of the Information Technology Act, 2000, for its vagueness. The aforementioned section used loose terms such as to cause “annoyance” or being “offensive”, which were not properly defined under the Act but were left open to interpretation. It in turn led to their blatant misuse until the section was finally struck down by the Shreya Singhal Judgement in 2015.
The impugned rules in their essence go against the spirit of the Shreya Singhal Judgement and have brought back similar objectives in their code of ethics. Thus, it has exceeded the scope of the Information Technology Act, 2000 which is the parent legislation in this case. They also try to bypass the doctrine of the colorable legislature by trying to do indirectly which cannot be done directly, the scope of which has clearly been defined by the Apex Court.
The 2021 Rules and their conflict with the Right to Privacy
Traceability and encryption cannot coexist. The technological world in which we now live has both advantages and disadvantages. On one hand, the world has become more open in terms of communication at both, the national and international levels; on the other hand, this technological era has introduced new ethical and legal issues. The intentions of the current government’s action are frequently questioned when it comes to forming policies for data privacy. We have very recently encountered the ‘Aarogya Setu’ fiasco, wherein the application failed to follow rules that have been set to protect the right to privacy of the people.
One of the main issues that are worrisome to the users and the significant social Media Intermediaries is that the ‘Significant social media intermediaries’ primarily in messaging shall have to enable the identification of the first originator of the information. This is done to curb the ‘fake news’ that is being circulated amongst the users of these significant social media intermediaries. The impugned rules may achieve what they set out to, but they will only be able to do so by significantly curbing the freedom of expression of the people.
Furthermore, WhatsApp, which is a significant social media intermediary, as per the 2021 rules, on its help center page now provides reasons for which it opposes the concept of ‘traceability’. It states that “The threat that anything someone writes can be traced back to them takes away people’s privacy and would have a chilling effect on what people say even in private settings, violating universally recognized principles of free expression and human rights”. Traceability as a concept seeks to break the end-to-end encryption that is provided by most messaging intermediaries to ensure user privacy. Facebook was very recently a part of a scandal wherein they were accused to be responsible for the harvesting of data of a very large portion of its users. It is ironic how WhatsApp, now owned by Facebook, Inc. is fighting for the sake of our privacy.
Justice K.S. Puttaswamy vs. Union of India is a landmark judgment that makes ‘right to privacy a fundamental right, and by failing to adhere to the four-pronged tests stated therein. These rules substantially infringe on the right to privacy as established. In this situation, while the rules had legal legitimacy, they were not subjected to parliamentary scrutiny because they were only tabled in Parliament and not debated upon. While the guidelines have been published, the government has not indicated a valid state goal for the provision’s inception.
The 2021 rules do provide for a provision for using ‘less intrusive means’ in the proviso of Rule 4(2), but neither the rules nor the parent act provides for a definition of what the less inclusive means entail. Thus, rendering the proviso unclear and ambiguous. Furthermore, it is important to note that, this provision is devoid of any procedural instruction. This gives law enforcement authorities great leeway in using a variety of methods to obtain such information.
There have been a plethora of judgments by the Apex Court based on the rules that have been laid down in the Puttaswamy judgment that emphasize the importance of the right to privacy of data in today’s world. With the way technology is becoming an integral part of our day-to-day lives, the government must regulate them, but they must also keep in mind that overregulation will only lead to the creation of more problems than solutions. The 2021 rules, in their essence, not only violate the right to privacy but also violate the right to freedom of speech and expression. Part III of the rules seek to regulate digital news media (though there is a lack of clarity on exactly which news media these Rules apply to) and OTT platforms, such as Netflix, Amazon Prime, and Disney+Hotstar. Part III is administered by the Ministry of Information and Broadcasting. They have also established a vaguely worded code of ethics for the digital news media and over-the-top platforms which will have a detrimental impact on publishers’ free speech as well as content consumers’ right to access information.
These rules have several procedural blemishes and in addition to that, they are blatantly and openly trying to disrupt the fundamental rights of the people. A balance of power needs to be set up with the democratic institutions to maintain the essence of democracy in the nation. It now rests upon the government to not try to infringe the fundamental rights of its citizenry and for all legislations to be made with a consumer-centric goal in mind.