MC Explains: The emergency provisions of IT Rules used to block BBC documentary in India

(Representative image: PTI)

The Indian government, through the Ministry of Information and Broadcasting, recently blocked content posted on social media platforms such as Twitter and YouTube pertaining to a documentary by the British Broadcasting Corporation on Prime Minister Narendra Modi's alleged role in the 2002 Gujarat riots.

The MIB, in its blocking order, listed over 50 tweets, including one by Rajya Sabha MP Derek O'Brien, lawyer Prashant Bhushan, women’s rights activist and others. The tweets are withheld in India, which means that the content cannot be seen in India but can be viewed in other jurisdictions.

One such tweet by O'Brien, which can still be viewed with a VPN, urges users to watch the documentary "before it is removed from @YouTube." The YouTube link was inactive at the time of publishing this article.

The Indian government used Rule 16(3) of Information Technology Rules and Section 69A of the IT Act to order the content’s blocking. What do these pieces of legislation say?

Before going deeper into the matter, it is important to point out that since the IT Rules came into effect, they have faced numerous legal challenges, both from social media platforms such as Meta (WhatsApp), which argued that the rules would violate the privacy of citizens, and news organisations such as Digital News Publishers Association, which in a petition said the rules' provisions curb freedom of speech and expression.

Now with the recent proposal to amend IT Rules — empowering Press Information Bureau's fact check unit to be the arbiter of fake news and ultimately to decide whether a piece of content can stay on social media platforms — the criticism against the rules have gathered significant momentum.

If you have been reading this news and are wondering how the government went about the ban, below is a primer.

What does Rule 16 (3) of the IT Rules say? 

IT Rules 2021 have two parts. The first part, Intermediary Guidelines, lay down rules that Significant Social Media Intermediaries (SSMIs), which are platforms with more than 5  million subscribers, have to follow to operate in the country.

Rule 16 of the IT Rules can be found in its second part, which deals with "Code of Ethics and Procedure and Safeguards in Relation to Digital Media." This section of the IT Rules specifically deals with obligations that digital media platforms such as news platforms, streaming services etc have to follow.

Specifically, Rule 16 talks about blocking of information in cases of emergency; and Rule 16 (3) says that an authorised officer of the government, in case of any emergency, within 48 hours can bring up before an inter-departmental committee the piece of content to be blocked and request the  panel for its recommendations.

The content that has to be blocked, should also fall within the purview of Section 69A of the IT Act.  Under Section 69A, Central government can issue blocking orders to platforms on specific grounds such as interest of sovereignty and integrity of India, defence of India, security of the state, friendly relations with foreign states, public order and so on.

What happens after emergency recommendations are given? 

After the committee makes its recommendations, the MIB secretary, if he or she is satisfied with the justification for blocking the information, will have to issue a blocking order direction with reasons in writing to persons, publishers or intermediaries.

Has Rule 16 been contested legally? 

Multiple news associations such as Digital News Publishers Association, Indian Broadcasting and Digital Foundation (IBDF) and others have approached courts such as the Madras and Bombay High Courts and so on challenging the IT Rules, including Rule 16.

The IBDF, for instance, has argued in a petition that the blocking of content under Rules 16 and 17 of the IT Rules without the other side being given any opportunity of being heard was in violation of the principle of natural justice , and that it also impacted trade, commerce, and business of its members.

In 2021, the Madras High Court and Bombay High Court stayed few provisions of the IT Rules, which has raised the eyebrows of digital rights groups in relation to the current emergency blocking order.

Internet Freedom Foundation argued: "Given that the operation of the 3-tier mechanism and the Code of Ethics have been stayed by the Bombay and Madras High Courts - the appointment of the Authorised Officer, and the exercise of its powers, is constitutionally suspect."

Has Section 69A of the IT Act been a bone of contention for petitioners in legal challenges? 

Yes.  Last year, Twitter took the Indian government to court regarding compliance with IT Rules 2021. Twitter had approached the Karnataka HC seeking relief from some blocking orders issued by the Ministry of Electronics and Information Technology (MeitY) under Section 69A of the IT Act 2000.

In its petition, Twitter said several of the blocking orders by MeitY did not meet the requirements of Section 69A, and that MeitY was disproportionately using its powers by asking Twitter to block accounts in their entirety.

What are the other provisions of IT Rules that have been criticised? 

Last week, the IT Ministry, in a proposed amendment to the IT Rules said news identified as fake or false by the Press Information Bureau's fact check unit needs to be removed from social media platforms.

The recent proposal introduced in the section 'Due Diligence by Intermediaries and Grievance Redressal Mechanism' of IT Rules 2021, says that intermediaries "shall make reasonable" efforts to not "host, display, upload, modify, publish, transmit" such information on platforms such as Twitter, Facebook and YouTube.

The proposal has raised concerns from digital rights groups and lawyers who are worried that this provision will give the Indian government more power to decide which content stays up and what is taken down.

"The Central Government is designating its press relations office — the Press Information Bureau — as the online arbiter of what is true and what is false,” said Raman Jit Singh Chima, Asia Pacific Policy Director and Senior International Counsel at Access Now. “This will give them the power to decide what content stays up and what is taken down, without any parliamentary authorisation or legal authority whatsoever.”