Why the New IT Rules Beg Urgent Judicial Review : 02-03-2021

Earlier this month, the Twitter account of The Caravan, a leading investigative journalism magazine was withheld. News agency ANI soon reported that around 250 accounts had been withheld by Twitter in India upon request from the Ministry of Electronics and Information Technology (MeitY) under Section 69A of the Information Technology Act, 2000 (IT Act).

The accounts withheld by the social media platform included accounts of persons tweeting and retweeting in support of the ongoing farmers’ protest against the newly introduced farm laws by the central government. One such account was of the Kisan Ekta Morcha, an organisation at the forefront of these protests.

The Twitter page of these accounts read: “Account withheld…account has been withheld in India in response to a legal demand.” The request was made by MeitY to withhold these Twitter accounts to prevent the deteriorating law and order situation during the farmers’

In light of this incident, it might be useful to explore the framework for content regulation introduced by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the Intermediary Rules) and the IT Act.

According to Twitter’s legal requests FAQ page, content removal requests are actioned upon when the reported content violates Twitter’s terms of service or rules or when the reported content is determined to be illegal in a particular jurisdiction. In the latter case, Twitter withholds the reported content in the jurisdiction in which it is alleged to be illegal.

As per Twitter’s rules and policies on ‘country withheld content’, upon receipt of requests to withhold content, Twitter promptly notifies the affected account holder unless they are expressly prohibited from doing so by way of an order from a court or under instructions of the government. While the accounts were restored by Twitter within a few hours, Vinod K. Jose, the executive editor of The Caravan said that they were not informed by the micro-blogging platform of its action in this particular instance, which points to the fundamental problem plaguing the content takedown regime in India under the IT Act – the confidentiality clause.

Role of intermediaries

Under the IT Act, intermediaries with respect to messages are defined as “any person who on behalf of another person receives, stores or transmits message or provides any service with respect to a message”, and ergo includes social networking sites such as Facebook and Twitter, instant messaging apps and e-commerce platforms. Intermediaries normally enjoy protection from liability under Section 79 of the IT Act (also known as ‘safe harbour provisions’) for the act of third parties, provided that they observe certain due diligence while discharging their functions, including publication of privacy policy, user agreement, etc. For example, if a defamatory content is uploaded by a user on Facebook, Facebook would not be held liable for posting of such defamatory content.

As part of their obligations as intermediaries, they were obligated to comply with government instructions to block access to any information in the interest of sovereignty, integrity, defense of the country, security of the state, friendly relations with foreign states, for maintaining public order or for preventing incitement to the commission of any offence under Section 69A of the IT Act and the Information Technology (Procedure and Safeguards for Blocking Access of Information by Public) Rules, 2009 (Blocking Rules).

More pertinently, Rule 16 of the Blocking Rules required strict confidentiality to be maintained regarding all blocking requests by the government and the actions taken by an intermediary in response to such requests. This resulted in all blocking orders being shrouded in a cloak of secrecy thereby rendering any kind of judicial review of such blocking orders impossible. The entire exercise of content blocking was driven solely by executive fiat and remained mired in opacity while effectively infringing upon the citizens’ fundamental right to speech and expression and right to information under Article 19(1)(a) of the Constitution.

Section 69A and the Shreya Singhal verdict

A multi-pronged constitutional challenge was mounted to Section 69A of the IT Act and Rule 16 of the Blocking Rules in Shreya Singhal vs. Union of India. It was contended that by not affording an opportunity of being heard to the originator of the content, the provisions were in strict disregard of the principles of natural justice and that the confidentiality provisions affected the fundamental rights of citizens.

However, the Supreme Court upheld the validity of Section 69A and Rule 16 by observing that the provisions contained sufficient procedural safeguards such as mandating a reasoned order in writing, hearing before a committee which is tasked with the responsibility to ascertain whether there is a necessity to block information, etc. The Supreme Court observed that these procedural safeguards enabled an aggrieved party to challenge the blocking order in a writ petition under Article 226 of the Constitution. Therefore, it thus flowed from this ruling that in order for the blocking orders to be challenged, such blocking orders must be made available to the public.

While the blocking rules provided a framework for giving an opportunity of being heard to the originator of the information, there is not even a single instance of such hearing till date. Further, despite the judgement by the Supreme Court in Shreya Singhal vs. Union of Indiaand Anuradha Bhasin vs. Union of India reiterating that government orders which affect the lives, liberty and property of the citizens must be made available to enable citizens to challenge them, the MeitY continues to cite the confidentiality provision in an authoritarian style to deny information on blocking orders.

The entire mechanism gives a complete carte blanche to the executive to issue blocking orders without being subject to judicial review or being held accountable for the propriety in issuing such blocking orders.

The new intermediary rules

While the previous content takedown regime in India left a lot to be desired in terms of executive accountability and transparency in issuing blocking orders, the government on February 25 introduced the intermediary rules which doubles down on the governmental regulation for all digital platforms – intermediaries, digital news media and over the top (OTT) platforms. Without adhering to the legislative process as mandated by the constitution and proper public consultations, the intermediary rules have conferred unbridled powers to the executive, potentially in complete disregard to the constitutionally guaranteed rights of freedom of speech and expression.

While certain provisions like providing an opportunity to the content creator to respond to blocking orders and review of blocking orders introduced by the intermediary rules are a welcome move, it cannot be ignored that the proviso to Rule 4(d) significantly curtails the timeframe to 36 hours to complete takedown of content by the intermediary upon receipt of an order from the court or the government.

The intermediary rules also saddles intermediaries with additional compliances, thereby increasing the operational costs and burden of intermediaries. Furthermore, Rules 10, 11 and 12 require intermediaries to establish a two-tier “self-regulation” mechanism and be subject to an “oversight” mechanism by the Ministry of Information and Broadcasting (MI&B).

Now, while the body constituted at the second level of self-regulating mechanism is being touted to be independent, in reality, it does away with all notions of independence as such a body is to be headed by a retired judge of the Supreme Court or a high court appointed from a panel prepared by the MI&B. The intermediary rules are silent on the modalities of constitution of such a panel. This allows the MI&B to appoint partisan retired judges to head such a body.

Surveillance of thoughtcrimes

Reminiscent of the Orwellian tale of junior spies from the book 1984, the Ministry of Home Affairs’s cyber crime volunteers program is a classic example of turning one citizen against another by promoting cyber vigilantism. The program creates a three-tiered set of volunteers stylised as: ‘cyber volunteer unlawful content flagger’, ‘cyber awareness promoter’, and ‘cyber expert’, who can flag content to the ministry for takedown.

Akin to the failed and unconstitutional movement of Salwa Judum undertaken by the government in the state of Chhattisgarh, the cyber crime volunteers program encourages a culture of surveillance leading to the breakdown of societal trust. The grounds for flagging of content are vague and couched in wide expressions which can lead to takedown of content based on the personal beliefs and ideologies of such volunteers.

This lateral surveillance program with unverified volunteers is in direct violation of the judgement in Shreya Singhal wherein unbridled exercise of power by the government to regulate online speech and expression under Section 66A of the IT Act was held unconstitutional.

As evinced from these developments, the government has lost out on the opportunity to improve upon the democratic rights of internet users. With evolving jurisprudence progressing to recognise the right to access internet as a fundamental human right, the chilling effect cast by the regulatory barriers under the newly introduced intermediary rules is a retrograde step in achieving this fundamental right. While there is a much required need to regulate online space, the manner and substance of the current regulations beg urgent judicial review.

Source : The Wire