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Digital India And The Censor Laws

What is contemptible for a person might be admirable for another. Even after learning the same laws, people interpret them in different ways. Then, how can a law-enforcing agency arbitrarily decide that the content of a section is poorly written? This was the question asked by the Supreme Court to annul S.66 A of the Information Technology Act.

The declaration of the section as unconstitutional was later celebrated as the victory of the Freedom of expression. Six Years later, lives and circumstances have changed. New laws and rules have come into the picture with great changes. There is a side that supports these changes and a side that argues that the new rules curb the right to express. This article tries to evaluate The Information Technology (Intermediary Guidelines and The Digital Media Ethics Code) Rules, 2021by analyzing the guidelines and criticisms.

Introduction
Six years have passed after the declaration of S.66 A[1] as unconstitutional. Under the new circumstances, the Apex court made another observation:
Law-making is necessary for the proper regulation of social media and O.T.T (over-the-top) platforms. Acts that do not provide provisions or scope of prosecution or punishment for the violators are merely guidelines and have no teeth’[2].

This comment was made by the SC[3] while listening to the petition seeking anticipatory bail by Aparna Purohit who is the head of Amazon Prime India Originals in the controversial Tandav web series case[4].

In the meantime, heated debates were happening in the outside world regarding The Information Technology Rules[5], which was notified the previous week (25th February 2021) by the Central Government.

The two observations made by two different benches of the Supreme Court in two different years hold extreme positions in the debate of Freedom of Expression.

The right to freedom of opinion is one of the basic values of the modern democratic system. Everyone has a fundamental right to form his/her opinion on any issues of general concern[6]. At the same time, unlike the United States, the Indian constitution does not give absolute freedom of expression[7]. The right is subjected to reasonable restrictions[8].

Here, the word reasonable is significant and complicated at the same time. If the preconceived notions of society and the interests of the State are the basis for determining what is reasonable, then the society, as well as the individuals, would have to pay a great price for the freedom to express opinions. There would be no scope for criticisms. This causes apprehension on the new Digital media guidelines and rules.

The internet has democratically decentralized content creation and distribution processes. There are different contentions raised by different groups both for and against the newly laid Digital media rules. One side of the debate has people who voice for Internet rights saying that there should be no law that disturbs the creative existence of content on the web. And the other side is of the opinion that there should be stringent laws against cyberbullying, fake news, and other antisocial activities.

New Guidelines
The Information Technology (Intermediary Guidelines and The Digital Media Ethics Code) Rules, 2021 has been drafted under S.87 (2) of the IT Act of 2000[9] as a replacement of the Digital media Rules of 2011[10].

The new Information Technology Rules has three parts:

  1. Basic information
  2. Due diligence by intermediaries and grievance redressal mechanism.
  3. Code of Ethics and Procedure and safeguards in Relation to Digital Media.
The second part is regulated by the Ministry of Electronics and Information Technology, and the third part, by the Department of Telecommunications.


Intermediaries

As per the IT Act; telecom, internet, web hosting service providers, search engines, Online payment services, social media, and messaging applications come under intermediaries[11]. As per the act[12], the intermediaries were not liable for any indirect transfer of information[13]. This actively demonstrates that the institution or social media is not liable for the contents created or shared by the users. However, the new rule does not give these benefits to the intermediaries. The government states that the intermediaries themselves act as publishers nowadays.

According to the number of users, social media intermediaries are categorized into normal and significant.

Some of the guidelines meant for these intermediaries are:

  • For resolving complaints, social media intermediaries should appoint a Grievance Officer. The complaint should be accepted within 24 hours and resolved within 15 days.
  • Images or videos containing private parts of people, nudity, fake or morphed contents should be removed within 24 hours of receiving the complaint.

Additional Guidelines for significant intermediaries

  • To ensure the proper working of the rules and regulations, a Chief Compliance Officer, a Nodal Contact Person, and a Resident Grievance Officer should be appointed. The officers should also be permanent residents of India.
  • Reports should be published on the complaints received and the actions taken every month.
  • Proper explanations should be provided regarding sources of the contents that disturb the sovereignty, safety, fraternity, and foreign relations of the nation. This is also applicable for rape content as well as images or videos regarding sexual offenses against children. Such contents should be removed within 36 hours of receiving the complaint.
  • The contents which are disallowed for publication by the Courts, Government or Government agencies that are unlawful should not be published.

Digital Media and Ethics

  • OTT platforms, online news portals, and media institutions are supposed to follow the digital media ethical guidelines.
  • OTT platforms should categorize contents based on the appropriate age of the audience.

The categorization is:

  • U (Universal)
  • U/A 7+
  •  U/A 13+
  • U/A 16+
  • A (Adult)

In addition, the publisher of online curated content shall prominently display the classification rating specific to each content or programme together with a content descriptor informing the user about the nature of the content and advising on viewer description (if applicable) at the beginning of every programme enabling the user to make an informed decision, prior to watching the programme[14].
  • Publishers of news in digital platforms should abide by the guidelines laid down by the Press Council of India and the Cable Television Network Regulation Act.
  • Digital media should have a three-tier self-regulatory mechanism for the classification of content, code of ethics, and grievance redressal system.

Criticisms:
  1. The rules are said to be helpful for grievance redressal but give the Government excess control over the intermediaries and digital media. This would not only restrict freedom of expression immoderately, but also curb the right to information and restraint the internet rights.
  2. Excessive censoring may get imposed over digital contents.
  3. The rules regarding the sources of the content affect the privacy of users, since tracking of the source is not possible without the removal of end-to-end encryption feature which ensures privacy in messaging applications. Although tracking of the source without removing the end-to-end encryption, was in consideration, the Internet Freedom Foundation explained that this might leave loopholes for frauds, i.e., to tamper with the information regarding the source.
  4. The the three-tier regulatory system of digital media includes the monitoring committee of the Government. The final decision on any complaint would be from this committee. This might lead to political censoring. The government can also impose its decisions on the media.
  5. Most of the significant OTT platforms functioning in India have implemented a self-regulating or classifying system content-wise and age-wise. Further control over these platforms by the government would be against the right to freedom of expression.
  6. The guidelines recommend using automated technology to detect unlawful contents. using developing technology for content checking is not practical. Also, the pre-conceived notions and interests in coding can cause discrimination of contents.
  7. News media does not come under the purview of the IT Act. Hence, including news portals in the rule is a violation.
  8. Enforcing a rule by an executive decree surmounting the parliament is not democratic. The rules were passed without proper discussions or debates in the parliament.

As mentioned earlier, the two observations made by the Apex court within a time difference of six years have made commendable changes in internet usage in our nation. The explanation of the Government for the new digital media rules is the remarkable growth of internet usage, even by the common people. They also explain that, as part of the digital- India program various new IT companies have rooted down in India which makes Government interference a necessity.

Statistics
As per Government records, significant social media in India are [15]:
  1. WhatsApp with 53 crore users
  2. YouTube with 44.8 crore users
  3. Facebook with 41 crore users
  4. Instagram with 21 crore users
  5. Twitter with 1.75 crore users
At the same time, some of the statistics from ‘Digital India’ contradicts the claims of the Government. As per the report of U.S Freedom House, Internet freedom in India is slowly declining each year. India ranked only the 51st position in the Freedom on the Net 2020 Index among 100 countries that are considered poor[16].

As per the statistics of Access Now, an organization working for digital rights and privacy, India is the nation that has the highest number of internet shutdown incidents in 2020. Worldwide, different governments purposefully severed the internet 155 times the previous year. Out of these, 109 incidents are from India. Internet blackouts not only threaten people’s lives during COVID-19 and block protests and organizing, they also dismantle pathways for getting help. Many who were targeted by shutdowns in 2020 remain in danger today[17]. As per top10VPN, India lost 2.8 billion dollars because of internet shutdowns[18].

Citizen Watch
Indian Cyber Crime Coordination center (I4C) is a nodal agency created under the Central Ministry to curb cybercrimes. I4C declares that it aims to find, curb, and prosecute cybercrimes with the cooperation of the government and the citizens. As part of this, citizens can register as a volunteer on the National Crime Reporting Portal.

The process in which the citizens themselves observe each other can be called lateral surveillance. In a nation with political, cultural, and religious diversities, lateral surveillance is sure to wreak havoc in the long run. This process creates enmity between people with ideological differences and causes intolerance in society.

The government accelerated the digital media regulations while the tool-kit controversy related to the farmers' protest was big news. One of the states chosen for the test run for citizen watch is Jammu and Kashmir where protests are rising due to the continuous internet shutdowns, the other state being Tripura. These are the major reasons that make critics doubtful regarding the credibility of the government.

Conclusion
When the number of internet users is increasing exponentially each year, the number of attacks, sexual assault, and frauds through the internet are also increasing. Hence, rules and guidelines that regulate internet usage are a necessary evil. However, the government should not excessively control or impose its political interests on the media.

While encouraging creative and progressive contents on the internet, we should also contempt unlawful activities. If the government can assure the proper working of the rules without excessive interference from their side, the rules and regulations might help reduce cybercrimes in India.

Reference:
  1. [Tandav] “Cheap and objectionable”, All HC rejects bail application of Aparna Purohit. Holds, submission of apology or withdrawal of scene after streaming would not absolve criminal liability | SCC Blog
  2. Aparna Purohit vs State Of U.P. on 25 February, 221
  3. Tandav Controversy: Case filed against makers, actors of web series in Bengaluru for hurting religious sentiments
  4. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
  5. Supreme Court refuses protection to makers of web series Tandav | Hindustan Times
  6. SC asks for law on OTTs, says the regulations suggested have 'no teeth'
  7. Constitution of India-Freedom of speech and expression
  8. S. Rangarajan Etc vs P. Jagjivan Ram on 30 March, 1989
  9. Article 19(1) in The Constitution Of India 1949
  10. Section 87 in The Information Technology Act, 2000
  11. Salient Features Of The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 - Media, Telecoms, IT, Entertainment - India
  12. Intermediary-Guidelines-2021.pdf
  13. Analysis Of The Information Technology (Intermediary Guidelines And Digital Media Ethics Code) Rules, 2021 - S.S Rana & Co
  14. Explained: India&apos's new draft rules to regulate social media, OTT platforms - The Week
  15. Due Diligence to be observed by Social Media Intermediaries and Significant Social Media Intermediaries under Information Technology Rules, 2021 - Lexology
  16. Government reveals stats on social media users, WhatsApp leads while YouTube beats Facebook, Instagram - Technology News
  17. 10122020_FOTN2020_Complete_Report_FINAL.pdf
  18. Freedom House Index: internet freedom in selected countries 2020 | Statista
  19. Internet shutdown news and report: a year in the fight to #KeepItOn
  20. Top10VPN estimates internet shutdowns in India cost in $2.77 billion
End-Notes:
  1. Section 66 A of the Information Technology Act, 2000
  2. SC asks for law on OTTs, says the regulation suggested having ‘no teeth’. – By FPJ Bureau; www.freepressjournal.in
  3. Hon’ble Supreme Court of India
  4. The case against the makers and actors of controversial web series Tandav for allegedly hurting the religious sentiments of the Hindus and promoting religious enmity between groups.
  5. The Information Technology (Intermediary Guidelines and The Digital Media Ethics Code) Rules, 2021.
  6. S. Rangarajan v. P. Jagjivan Ram on 30th March 1989, 1989 SCR (2) 204, 1989 SCC (2) 574
  7. Article 19 (1) (a) in the Constitution of India, 1949
  8. Clause (2) of Article 19 of the The Indian constitution, 1949
  9. The power of the Central Govt to make rules.
  10. Information Technology (Intermediary Guidelines) Rules, 2011 as notified on April 11, 2011.
  11. S.2 (1) (w) of Information Technology Act, 2000
  12. Information Technology Act, 2000
  13. S.79 of the Information Technology Act, 2000
  14. OTTs to self-classify content, get a three-tier grievance redressal system: www.exchange4media.com
  15. Government reveals stats on social media users, WhatsApp leads while YouTube beats Facebook, Instagram: www.indiatoday.in
  16. Degree of internet freedom in selected countries according to the Freedom House Index 2020: www.statista.com
  17. Internet shutdowns report: Shattered dreams and lost opportunities — a year in the fight to #KeepItOn
  18. www.medianama.com

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