February 26, 2021 7:41:14 am
On Thursday, the Government of India announced drastic changes to it through the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These changes, explains Apar Gupta, the executive director of the Internet Freedom Foundation, contain three big highlights.
First, fresh obligations for social media companies and platforms. The substance of many of these proposals has been retained and hurt both user privacy and free expression online.
“Take traceability, where instant messaging platforms which deploy end-to-end encryption that helps keep our conversations private will now effectively be broken. This is because now the government may require that each message sent through WhatsApp or any other similar application be tied to the identity of the user. When put in the larger context of an environment that is rife with cybersecurity threats, an inconsistent rule of law and the absence of any surveillance oversight, this inspires fear and self-censorship among users,” writes Gupta, in an opinion column in The Indian Express.
Two other changes need to be highlighted that go beyond social media companies — the government regulating digital news media portals as well as online video streaming platforms. Here, an oversight mechanism is being created without any clear legislative backing and will now increasingly perform functions similar to those played by the Ministry of Information and Broadcasting for TV regulation. “For instance, as per Rule 13(4), this also now includes powers of censorship such as apology scrolls, but also blocking of content,” he states.
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A similar problem exists with digital news media portals. The purview of the Information Technology Act, 2000, is limited. It only extends to the blocking of websites and intermediary liabilities framework but does not extend to content authors and creators. Hence, the Act does not extend to news media despite which it is being stretched to do so by executive fiat. This may seem like legal semantics but all of this visits itself in terrible outcomes. For instance, the oversight function will be played by a body that is not an autonomous regulator but one composed of high ranking bureaucrats. This provides for the discretionary exercise of government powers of censorship over these sectors.
“Here, the argument is not against the complete absence of regulation, but one that proceeds from clear first principles of constitutionality and safeguards the right to receive information for end-users while minimising threats. This could have ideally been achieved through more deliberative, parliamentary processes and by examining bodies in other democracies, which face similar challenges,” argues Gupta. He cites the example of OFCOM — a regulator in the United Kingdom that has been studying and enforcing regulations that promise higher levels of protection for citizens’ rights and consistency in enforcement.
“Instead, the present formulation increases government control that suffers from legality and core design faults. It will only increase political control,” he states.
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