Nine-Pin Bowling Aimed At Free speech, Privacy

Context: A critical analysis of the Information Technology Rules (IT Rules), 2021.

Creditable provisions of the Rules

• Removal of non-consensual intimate pictures within 24 hours.
• Publication of compliance reports to increase transparency.
• Setting up of a dispute resolution mechanism for content removal.
• Adding a label to information for users to know whether content is advertised, owned, sponsored or exclusively controlled.

Criticism of the Rules

• Act of colourable legislation: The Second Schedule of the Business Rules, 1961 does not empower Ministry of Electronics and Information Technology (MeiTY) to frame regulations for ‘digital media.’
  • This power belongs to the Ministry of Information and Broadcasting (MIB).
  • While the implementation still lies with MIB, this action violates the legal principle of ‘colourable legislation’ where the legislature cannot do something indirectly if it is not possible to do so directly.
• Ultra-vires to the Information Technology (IT) Act: The IT Act, 2000, does not regulate digital media, the new IT Rules travel beyond the rule­making power conferred upon them by the IT Act
• Lack of fair recourse: An intermediary is now supposed to take down content within 36 hours upon receiving orders from Government depriving it of a fair recourse in the event of disagreement.
• Fetters upon free speech: By fixing Government as ultimate adjudicator of objectionable speech online.
  • Life Insurance Cooperation of India vs Prof. Manubhai D. Shah case, 1992: SC had elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’, while any attempt to stifle this right would usher in autocracy and dictatorship.
• Undermines the right to privacy: By imposing traceability requirement, puts an end to the end-to-end encryption and is also against the privacy judgement in Puttaswamy Case.
  • Ending end-to-end encryption makes all data vulnerable to attack from ill-intentioned third parties
  • Vulnerability to be heightened in the absence of data protection law.
• Arbitrary handling of fake news: Rules proceed to hurriedly take down whatever an arbitrary, ill-decisioned, biased authority may deem as “fake news”.
• Increased compliance burden: By requiring intermediaries to have Indian resident nodal officers, compliance officers and grievance officers and offices located in India, these Rules place a barrier on the “marketplace of ideas” but also on the economic market of intermediaries.

Conclusion: Democracy stands undermined with every attack made on citizen’s right to have private conversation, to engage in transaction, to dissent, to have opinion and to articulate the same without any fear of being imprisoned.