It’s Important To Ring-Fence Creative Expression Online

Context: There is a need for clarification regarding the scope of latest Information Technology (IT) Rules, 2021.

About the latest Information Technology (IT) Rules, 2021

• Greater scrutiny: Put social media companies, digital media and news services under greater scrutiny.
• Expand scope of Section 69A of IT Act 2000: Originally meant to govern intermediaries.
  • Wider interpretation: Digital applications like social media are intermediaries in strictest sense, since they merely facilitate interactions among internet users.
• Enhanced role of State: Empower state to block access to curated content on digital media platforms, in interest of “sovereignty and integrity of India, defence of India and security of State" and other such grounds, under Section 69A.
  • Recent applications: Section was invoked to take down problematic accounts on Twitter, and also to ban popular apps like TikTok and PubG.

Concerns associated with the Rules

• Lack of clarity: Terms like “in the interest of the sovereignty and integrity of India" can be fairly nebulous in scope, especially when applied to creative expression.
  • Satire confused for sedition: Case of Aseem Trivedi, the cartoonist arrested in 2012 on sedition charges, later, Bombay high court held, these were frivolous grounds that impinged on cartoonist’s freedom of speech and expression, protected by the Indian Constitution.
• Lack of checks and balances: No institutional mechanism of checks and balances is put in place, while the law is being expanded and powers of State being enhanced.
• Criticisms on rule-making paradigm: Scope for legislative intent to be lost in rule-making exercise under IT Act.
• Stress on content creators: Without guiding parameters, creators will constantly walk on eggshells, wondering whether their web series, movies, or songs are reasonably within the bounds of free speech.

Way forward

• Take efforts to simplify and explain the meaning to those upon whom laws are promulgated.
  • According to ‘Ignorantia juris non excusat’ principle: Ignorance of the law is not an excuse for its violation.
  • Also, ambiguities in official guidance, combined with the inexcusability of ignorance, puts the subject of the law into a cruel bind.
• Taking a cue from international practices:
  • France: The Conseil supérieur de l’audiovisuel (CSA), an authority that regulates electronic media, has a very limited and clearly defined role, to ensure that broadcast media adhere to country’s laws.
    • The Gayssot Act: Makes it illegal for anyone to deny that the Holocaust ever happened.
    • Separate laws: That prohibit homophobia and advocacy of illegal drugs.
  • Japan: Formal censorship of any kind is banned by law, however, pornography is made illegal.
  • United States’ absolutist approach: The First Amendment of the US Constitution allows total free speech, including utterances that may qualify as hate speech.
• Need of the hour: India could choose its approach but must avoid scope for ambiguity in upholding Constitutional right of free speech and support the thriving digital media and entertainment industry.