Freedom of expression is sanctioned by article-19 of the International
covenant on civil and political rights (ICCPR) and further, universal
declaration of the human right (UDHR), India is a signatory to UDHR and acceded
to the ICCPR in 1948, 1979 respectively, over a period of time, the apex Court
of India has consistently acknowledged that principles the UDHR, as well as
ICCPR, constitute India's constitution fabric.
The court has also relied upon article 19 ICCPR'S three parts to assess
restrictions on freedom of expression in landmark verdicts, for instance,
Navtej Singh Johar vs India
, and K.S. Puttaswamy vs Union of India
Interestingly, article 19 of the ICCPR provides for freedom of opinion and
freedom to seek, receive and impart any information without interference.
Furthermore, in July 2012, the human right council had adopted a resolution
affirming that the rights guaranteed to person 'affined' also extend to the
digital space, India acceded to the ICCPR in 1979, affirming its commitment to
the freedom laid down in the covenant in the Nilabati Behera Case (1993)
The top Court had relied upon a provision in ICCPR to hold that the government
of the day can be directed to pay compensation for breach of fundamental rights.
The traceability requirement in Rule 4 of the 2021 Rules violates the right
as laid down in Article 17 ICCPR. However, the top court of India
recognised the right to privacy as an integral part of the right to life under
Article 21 of the Indian Constitution in Puttaswamy vs. Union of India
It is mandatory for a significant social media intermediary providing messaging
services to identify the first originator of a message is necessary for the
investigation of certain offences. This requirement also violates the right to
privacy as it grants the power to executive authority to order a social media
platform to disclose a user's identity, according to Rule 4(2) of the new IT
The new rules do not meet the legality threshold as they provide unfettered
powers to the Executive to arbitrarily choose the intermediaries that must
comply with harsh regulatory obligations. For a restriction on the freedom of
expression to meet the threshold of legality, it must be lawfully enacted in a
precise manner. It grants sweeping powers to the government to decide which
intermediaries must comply with a special, more-stringent regulatory framework.
The new rules introduce harsh new obligations, such as requiring intermediaries
that provide messaging services to identify the first originator of certain
messages [Rule 4(2)]; social media platforms to use active content filtering
algorithms to identify and remove certain kinds of illegal content [Rule 4(4)];
authorising the Government to pass emergency blocking orders to immediately
remove certain content (Rule 16), and imposing criminal sanctions on
intermediaries for failing to comply with these Rules (Rule 7).
For these reasons, the Rules compatibility with India's Constitutional law
framework was immediately challenged before the Delhi High Court and the Kerala
High Court. And it also raises critical questions about India's obligations
under the UDHR and the ICCPR.
The requirement for limitations regarding freedom of information and expression
to be 'provided by law' is an important guarantee of the rule of law. On 11
June, the United Nations Special Rapporteur on Right to Freedom of Speech and
Expression addressed a strongly-worded letter to the Indian government
criticizing certain provisions of the Information Technology Rules, 2021.
However, India's response highlighted the protection of freedom of speech and
expression as a fundamental right in the Indian Constitution, as a defense to
the scathing criticism of newly enacted IT Rules. A few years later in 1997, the
top court again turned to International human rights law to lay down Vishakha
for the prevention of sexual harassment at the workplace.
Lack of Judicial Oversight
One of the major criticisms of the New IT Rules is that it empowers the union
government to ask the private companies to take down content under ambiguous
categories and that too without adequate independent oversight. Lack of
independent oversight in laws that restrict free speech go against the standards
set in International Human Rights Law.
In 2018, a report of the Human Rights Council highlighted that content removals
must be undertaken "pursuant to an order by an independent and impartial
judicial authority, and in accordance with due process and standards of
legality, necessity and legitimacy.
Obligation to Reveal Message Originator Violates Privacy Law
Section 4(4) of the new rules, which empowers the government to direct an
intermediary to reveal the originator of a message, is a blatant attack on
established principles of the right to privacy under international law.
However, Article 17 of the ICCPR provides that:
No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence.
In November 2016, a report of the Special Rapporteur on right to privacy noted
that encryption is an "effective technical safeguard" that can, among other
technical solutions, contribute to the protection of the right to privacy.
In the recently released Freedom House Report, the country continues to be a
robust democracy in its concerned policy making process. Although history is a
testament that when freedom of speech and expression withers down, it is only a
matter of time before robust democracies turn into elected autocracies. These
Rules are a watershed moment for freedom of expression in India's democratic
prospect, and the future of the UDHR and the ICCPR.
Activists, journalists, Constitutional experts, and civil society have called
upon domestic Courts hearing challenges to the 2021 Rules to uphold the freedom
of expression and the right to privacy and strike down the disproportionate
provisions in these Rules. If upheld and implemented in their current form,
these Rules would regulate big tech in India, but at the cost of freedom of
expression in the world's largest democracy, the report asserted.
Therefore, the country has an obligation to ensure that its laws and policies do
not flagrantly violate the freedoms enshrined in ICCPR. However, certain
provisions of the new IT Rules purport to create an ecosystem where the right to
exercise freedom of speech in the digital space, a freedom guaranteed under
ICCPR, would be seriously jeopardised. It may provide the authorities with the
power to censor Journalists who expose information of public interest and
individuals who report on human rights violations in an effort to hold the
Additional Due Diligence to Be Followed by Significant Social Media
- Appoint a Chief Compliance Officer who shall be responsible for ensuring
compliance with the Act and Rules. Such a person should be a resident in
- Appoint a 'Nodal Contact Person' for 24x7 coordination with law
enforcement agencies. Such a person shall be a resident in India.
- Appoint a 'Resident Grievance Officer' who shall perform the functions
mentioned under Grievance Redressal Mechanism. Such a person shall be a
resident in India.
- Publish a 'monthly compliance report' mentioning the details of
complaints received and action taken on the complaints as well as details of
contents removed proactively by the significant social media intermediary
Amidst growing concerns around lack of accountability, transparency, and rights
of users with regard to digital media and after elaborate consultation with the
public and stakeholders, the Information Technology (Intermediary Guidelines and
Digital Media Ethics Code) Rules 2021 has been framed in exercise of powers
under section 87 (2) of the Information Technology Act, 2000 and in supersession
of the earlier Information Technology (Intermediary Guidelines) Rules 2011,
according to Ministry of Information and Broadcasting. The new rules prescribe
due diligence that must be followed by intermediaries, including social media
It seeks to empower the users by mandating the intermediaries, including social
media intermediaries, to establish a grievance redressal mechanism for receiving
resolving complaints from the users or victims. Such a complaint can be filed
either by the individual or by any other person on his/her behalf. Thus, The
Rules also make a distinction between social media intermediaries and
significant social media intermediaries. This distinction is based on the number
of users on the social media platform. Government is empowered to notify the
threshold of the user base that will distinguish between social media
intermediaries and significant social media intermediaries.
According to the Ministry of Information and Broadcasting, Proliferation of
social media, on one hand empowers the citizens then on the other hand gives
rise to some serious concerns and consequences which have grown manifold in
recent years. Above have been raised from time to time in various forums
including in the Parliament and its committees, judicial orders and in civil
society deliberations in different parts of the country. It is also raised all
over the world and it is becoming an international issue.
Of late, some very disturbing developments are observed on social media
platforms. Persistent spread of fake news has compelled many media platforms to
create fact-check mechanisms. Rampant abuse of social media to share morphed
images of women and contents related to revenge porn have often threatened the
dignity of women. Misuse of social media for settling corporate rivalries in
blatantly unethical manner has become a major concern for businesses. Instances
of use of abusive language, defamatory and obscene contents and blatant
disrespect to religious sentiments through platforms are growing, it said.
However, Rules about digital media and OTT focuses more on in-house and
self-regulation mechanisms whereby a robust grievance redressal mechanism has
been provided while upholding journalistic and creative freedom. In the context
of Ensuring Online Safety and Dignity of Users, Specially Women Users,
Intermediaries shall remove or disable access within 24 hours of receipt of
complaints of contents that exposes the private areas of individuals, show such
individuals in full or partial nudity or in sexual act or is in the nature of
impersonation including morphed images etc.
Rule 6 provides that even if a social media intermediary does not meet this
user-threshold, the government may require an intermediary to meet these
additional obligations if it believes that their operations create a material
risk of harm to the sovereignty and integrity of India, security of the State,
friendly relations with foreign states or public order. Following the same,
Intermediaries shall appoint a Grievance Officer to deal with such complaints
and share the name and contact details of such officers. They shall acknowledge
the complaint within twenty four hours and resolve it within fifteen days from
Notably, Awareness of some of the major challenges faced by the regulatory body,
ranging from convergence to the persisting issue of the digital divide, is,
therefore, necessary to be better equipped to handle such challenges. However,
The convergence of telecom, Internet service, and media broadcasting is widely
recognised to be a landmark development in modern technology and service
innovation. At the same time, it has given an increasingly massive policy
challenge with countries across the globe still mulling over the optimum
strategy to adapt.
The regulatory framework for the New Media has undergone huge transformative
changes in the wake of digitalization and the great impact of COVID-19 pandemic.
From work to entertainment, education to social events, massive activities are
shifting online as the offline alternatives are impractical. Hence, Such a
regulatory framework requires transformative reforms to strengthen the 'New
Media' sphere. It also finds that most of the urban population are using online
content on a daily basis for gaining information, knowledge, promotions, event
planning, and much more.
The move towards digital services, particularly digital financial services, has
also created the need for more cooperation between the Authority and other
sectoral regulators. TRAI's open consultation process is one such avenue for
ensuring effective areas of cooperation with other agencies. For example,
recognizing the potential for delivery of digital financial services, TRAI has
released several consultation papers, to which the Reserve Bank of India (RBI)
has provided its inputs. Going forward, this work in the alignment of regulatory
approaches of various sectoral regulators will gain even more significance.
A permanent regulatory framework can be made for monitoring purposes of the new
media to ensure the standard quality and authenticity. In the contemporary
scenario, there is a dire need to regulate and monitor the digital content in a
very appropriate manner as it is a tool of the 'freedom of speech and
expression'. However, the most significant thing is how the majority of people
in a particular country feel about the same issue.
Many people are favouring the modification of the telecom regulatory framework.
The present recommendations of the TRAI emphasized that OTT players do not need
to be brought under any form of the regulatory body, which will in no way stop
the government from drafting intermediary guidelines for new media and data
protection laws. The recommendations only relate to an aspect of the regulatory
body which deals with licensing, payment of any statutory charges to the
government, and also a provision for a legal interception.
About Author: Trilok Singh,
Studies Masters in Mass Communication &
Journalism at International School of Media and Entertainment Studies, News 24
Campus. MA in Political Science, Kirori Mal College, University of Delhi.
Founder and CEO at Post A2Z (Social Media Apps/Messenger/Site), Youth Darpan,
IASmind and India's Journal. Forthcoming microblogging platform is Tweet A2Z.