In 2012, cartoonist Aseem Trivedi was booked for sedition for a cartoon on his blog, run on a Google-owned service, that depicted the Indian national emblem in a manner that highlighted corruption under the UPA government. If a Chief Compliance Officer, under Rule 3(2) of the new Information Technology Rules 2021, following a complaint from a user, were to not take down such content, she would have to take on criminal liability on behalf of the platform. The same would apply for another abstract idea — defamation. With the scale at which complaints regarding sedition and defamation are being filed in the country, platforms and grievance officers are likely to err on the side of caution and end up censoring legitimate speech. Imagine having to deal with a million such complaints from among nearly 700 million Indians in 15 days, as the rules dictate. Given the low threshold of 5 million users for a country like India, and the broad definition in the rules, services like Google Docs, PhonePe, Practo, Zoho, Freshdesk and Naukri are also significantintermediaries, and face similar compliances.
The IT Rules are the largest expansion of government control over speech in the country in the last decade. This need to control the narrative, and to restrict criticism of the government was recently highlighted in a leaked report from theon government communication. The net has been cast wide, covering everything from ISPs, handset providers, email, WhatsApp, Zoom, Netflix, Hotstar and all the news sites we view online. The government’s China-envy is now out in the open. Like China, the control is exercised through “self-regulatory mechanisms” or “guidelines” put in place for platforms and services, but the penalties are such that our freedoms will be impacted.
Another key part of the rules is that the platforms have to provide identification of the first originator of a message. The world is moving towards technologies such as end-to-end encryption, which ensure that the safety of our messages remains intact. By trying to force a technological change through the changes in these rules, the Indian government will end up making communications on services like Signal and WhatsApp more vulnerable and less safe.
The rules also empower the government to step in and censor streaming content, after it goes through adjudication via a few layers of a self-regulatory system. Bureaucrats become the eventual determinants of whether content is fit-to-consume. This is a change from 2015, when the Attorney General of India said if someone is watching content online (in that case it was porn) the government cannot do moral policing. Streaming services are not broadcast or public exhibition: users select and view the content in a private environment.
A similar regulatory structure for censorship is being created via these rules for online news which could ensnare everyone one from a YouTuber running ads on her comments on the news, as well as specialist news publications focusing on niche domains. The compliance burden of grievance redressal here, which doesn’t apply to traditional publishers, would make many of them unviable. Here the government has given itself an additional power to secretly block news content online without any judicial oversight: it would be illegal for online news publishers to disclose that they’ve been asked to censor content. That’s one way to change the public narrative.
Over the past couple of years, the Indian government has been informed in consultations that theitself does not enable it to create these provisions for traceability, or nudge platforms towards proactive monitoring and take-down of content. It’s also true that the Act doesn’t allow for the creation of entire regulatory structures for streaming services or even digital news. For the government to notify these rules, knowingly undermine the parliamentary process of law-making, and challenge the Indian citizen to go to court to ensure that such actions are deemed unconstitutional, is inherently bad-faith regulation. A government needs to be better than this.
It took the arrest of Baazee.com co-founder Avnish Bajaj in 2006, when he landed in Delhi to cooperate with the Delhi Police, for the IT Act to be amended in 2008 to protect platforms. It took the arrest of Shaheen Dhada and Rinu Srinivasan — one for an innocuous post, the other for liking it — in 2012, for Section 66A to eventually be held unconstitutional in 2015. Who will have to suffer now for these regressive and draconian rules to be junked?
(Nikhil Pahwa is the founder of MediaNama. Views expressed are of the author’s and not of www.economictimes.com)