“The Internet is not broken; and the government is taking steps to fix it.” That’s how comedian John Oliver explained some new regulations over the Internet back in 2014. In the India of 2021, however, that is not something that can be said anymore. The Internet is unarguably broken — there is rampant spread of falsehoods and propaganda, a lack of consequences for bullying, and an asymmetrical power imbalance between tech companies and their users.
The government’s attempts to fix our Internet, though, seem to be focussed on its healthier parts. The new Information Technology (Guidelines for Intermediaries and Digital Media Ethics) Rules, 2021 tries to bring in new rules for social media platforms, news portals, and entertainment outlets on the Internet.
There are commendable provisions such as a 24-hour limit within which intermediaries have to remove non-consensually transmitted content of a sexual nature that is used to harass or intimidate an individual, or is in the nature of impersonation. Similarly, intermediaries must comply with take-down notices for content that threatens the sovereignty of the country, affects public order and so on. These are contained in Section 69 of the Information Technology Act, 2000, too.
However, the new rules add several new categories under which the government can issue such notices — decency and morality, contempt of court, defamation, incitement to an offence. Innocuous as these might sound, perhaps even necessary, they are legally untenable for multiple reasons. First, the government cannot grab further power than what the legislature granted it by law, as it is doing here. Second, these criteria are much more subjective. What one perceives as defamatory may not be so under law. For instance, truth is a valid defence against defamation. Uncomfortable truths/speech can be silenced by categorising it as ‘incitement to offence’.
If a person is defamed, the onus is upon them to seek appropriate remedies under law. Courts already have the power to punish for contempt. The alleged defamer or contemnor, might have their defences — such as truth, for instance. For the government to use peremptory powers in these cases is only a prescription for misuse. Take the recent acquittal of journalist Priya Ramani in defamation charges brought by her former boss, MJ Akbar. At the time of the allegations, Akbar was a Union Minister, and a government in future could well be tempted to shut down the allegations under these provisions rather than go through the rigmarole of proving the charges in court.
The danger is compounded by the requirement of Rule 16 of the Information Technology (Procedure Safeguards for Blocking for Access of Information by Public) Rules, 2009, which mandate complete confidentiality for requests for blocking access, thus lowering accountability thresholds.
These concerns assume even more significance in the light of the government’s recent directive to Twitter to suspend accounts of prominent handles by categorising them along with others that shared an objectionable hashtag. While Twitter pushed back, that cannot be taken for granted. Last year, Zoom admitted to cutting off accounts of activists in obedience to the Chinese government. Given that their choice is between complying with government diktats or having operations, and by extension, profits, disrupted (or worse, expose employees to criminal charges and potential imprisonment), it is understandable that private companies, however noble-intentioned, would take the non-confrontational approach.
News outlets, and their readers, should be particularly concerned that atop the grievance redressal mechanism sits a group of bureaucrats with the power to direct removal of content.
To be sure, there are no clear answers here. A democratically elected, and accountable, government should be responsible for -- and empowered to -- protecting its citizens. That definitely includes the power to take down dangerous content — such as a call to recruit terrorists, or what is commonly known as revenge-porn. There ought to be limits, and those limits should be laid down in law, and strictly enforced by the courts.
One of the new requirements mandate tracing the originators of messages that have the potential to threaten the sovereignty and integrity of the nation and so on. One cannot argue with the need for such protection — we all want a safe country, after all. But with a government that identifies itself as synonymous with the nation, and equates any dissent as a threat to the nation’s integrity, these provisions become deadly weapons to simply stifle dissent.
There was a time not long ago that we thought that Internet, and its democratisation of communication systems, will save us from authoritarianism and governments. As it looks increasingly clear, it is the Internet that needs saving from governments now.