Digital media has aimed at individuals to socialise, interact, grow and express; however, as a fact people have started misusing it to put forward threatening, deceptive and defamatory content. To regulate such practices, the Government of India has enacted, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021[i]; to regulate the content and actions of the intermediaries, thus defined under the law.
While demarcating the Social-Media Intermediary and Significant Social-Media Intermediary, the latter ones are bound to perform additional due diligence under Rule 4 and 6 of the law while creating a Grievance Redressal Mechanism wherein, upon receiving a complaint, the Resident Grievance Officer will have to acknowledge the content within 24 hours and take a decision within 15 days of receiving the complaint. Further, if the Intermediary receives a court order or is notified by a government authority or its agency, then it, necessarily, will have to take down the content within 36 hours. Additionally, the Intermediary shall have to identify the first originator of the information, if it receives a judicial order in this regard. In the case otherwise, the Intermediary shall be liable for penal actions.
However, the Information Technology Act does not deal with digital media and therefore, the Rules are ultra-vires the Act. They are not only beyond the Act itself but are also outside the constitutional purview. Through this article, the authors will accentuate how the IT Rules, 2021 are nothing but, a finagling effort of the Central Government to restrict the rights of the citizens thereby, adding onerous and impracticable responsibilities on the intermediaries.
TRANGRESSION OF THE CONSTITUTIONAL CONTOURS
Article 14 of the Indian Constitution provides for equality before law and the same is applicable to both citizens and non-citizens. The Rules create a classification between intermediaries according to the number of users registered with the intermediary’s platform. The objective of the legislature to publish these rules was to regulate malafide, harmful and deceptive content. Creation of such a threshold does not have a reasonable nexus with the object of the Rules; therefore, the classification is devoid of intelligible differentia ad falls foul of Article 14. Henceforth, the Rules contravene the right to equality of significant social media intermediaries such as Twitter, Facebook, Whatsapp etc.
Rule 4(2) states that if an Intermediary receives a judicial order or any order passed by a competent authority under Section 69 of IT Act, it will have to trace the first originator of the information and provide the information to the government. This provision is the most contended one because it gravely infringes upon the privacy of an individual. The Intermediaries have established their credibility on the fact that they provide a safe platform to the individuals to interact, without breaching their privacy. Applications such as Whatsapp are end-to-end encrypted which disables any third party including Whatsapp to read the messages.
In order to identify the first originator, Whatsapp will have to change one of the most essential features of its application which is highly burdensome and against the contours of privacy of its users. The Rules explicitly state that the contents of an electronic message are not required to be disclosed; however, it is impossible to identify the first originator without such a disclosure. The provision has numerous fallacies as it is not practicable for the Intermediaries to trace the first originator in the first place and even if it is able to do so, the same will be possible only on the cost of breaching the privacy of a substantial number of people. Privacy is one the most important facet of an individual’s life and the same can be traced under Articles 14, 19 and 21 of the Constitution; therefore, the government cannot intrude in it by making unjust and unfair laws.[ii]
Rule 10 enumerates the Grievance Redressal Mechanism wherein a three tier structure has been laid down by the legislature. The Resident Grievance Officer, upon receiving a complaint has to decide upon the matter within 15 days. In case, the Officer fails to decide within the stipulated time frame, the complaint will automatically escalate to the Self Regulating Body constituting of a retired High Court or Supreme Court Judge or an independent person from the fields specified under Rule 12. If the complainant is not satisfied with the decision at level 2, he can further, appeal at level 3 which constitutes an officer appointed by the MIB itself. The aforesaid mechanism is evidently unconstitutional as it over-delegates powers and functions to the executives. Decision making power should be present with the Judiciary; however, the Rules delegate the same to the executive and are, therefore, in clear violation of the Doctrine of Separation of Powers and the mechanism clearly suffers from over-delegation.
The Rules formulated by the legislature create differential obligations, breach the right to privacy of individuals and evidently violate the doctrine of separation of powers and all of these cumulatively make it apparent that the government is indirectly putting a restriction on the freedom of speech and expression of the individuals. The traceability clause will come into force if, there is an offence related to sovereignty and integrity of India. It is important to note that these terms are nowhere defined and are vague and uncertain and it thereby gives arbitrary powers to the government to decide which content is against the sovereignty and integrity of the country. It is therefore, conspicuous that the latent agenda behind promulgating the present rules is to curb the freedom of individuals to put their views against the practices of the government. The Supreme Court in the case of Shreya Singhal v. Union of India stated that reasonable restrictions provided under Article 19 should not be arbitrary and excessive in nature[iii]. The government in order to prevent action of one individual cannot breach the rights of other people.
MUTUAL INCONSISTENCY BETWEEN THE INTERMEDIARY RULES AND THE PERSONAL DATA PROTECTION ACT
Rule 3(1)(h) states that an intermediary, if it collects data from a user, will retain the same for a period of 180 days after the withdrawal of the user from registration. The clause is against the provision of data retention given in the Personal Data Protection Act, 2020. The PDP Act states that any personal data of the user cannot be retained after the purpose for which it was collected is fulfilled. However, an Intermediary mandatorily has to retain personal data of the user for 180 days irrespective of whether the purpose has been fulfilled or not.
The traceability clause of the IT Rules is to identify the first originator of information, indirectly make it incumbent upon the Intermediaries to collect the data of a number of people without any reason merely to trace the first originator of information, which is clearly in contravention with the PDP Act.
CHALLENGING THE VALIDITY OF THE RULES: ATTACKS FROM THE INTERMEDIARIES
Since February, 2021, various several digital media platforms moved various High Courts challenging the constitutionally and validity of the IT Rules.
Interactive platforms such as Whatsapp and Twitter have stated that the new IT Rules are arbitrary as they expose them to penal liabilities and take away their immunity as given under the Section 79 of the IT Act as safe harbor protection. They further state that the guidelines are onerous because it is not practicable to change the essential features of their software for a single country and that the rules are in violation of humanitarian principles both under the domestic law as well as the international law as they breach privacy of the users. [iv]
Digital news platforms such as The Wire and The Quint have also challenged the validity of the Rules as they not only violate the freedom of individuals to express but, also contravene their freedom of press as enshrined under Article 19(1)(a) of the Constitution. The Wire also, stated that there is over- delegation of powers to the executive.[v]
There are other petitions filed before the Kerala High Court by Open source Programmer and Live Law challenging the constitutionality of the Rules.
The Hon’ble Supreme Court in the landmark case of KS Puttaswamy v. the Union of India, ruled against the government’s decision to link Aadhar with mobile phones upholding the right to privacy of individuals. The GOI, through the IT Rules has again managed to come up with a conniving scheme to intrude in the personal spaces of the individuals thereby, taking away their rights. The present Rules are not only ultra vires the Constitution but, also contravene the international obligations laid down under the UDHR and the ICCPR to which India is a signatory.
[i] The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (India).
[ii] (2017) 10 SCC 1.
[iii] (2015) 5 SCC 1.
[iv] Whatsapp Moves Delhi High Court Challenging Traceability Clause Under New IT Rules As Violative Of Right To Privacy, Live Law, 26-05-2021, Available at https://www.livelaw.in/top-stories/whatsapp-moves-delhi-high-court-challenging-traceability-clause-as-being-violative-of-right-to-privacy-174704.
[v] ‘The Wire’ And Others Move Delhi HC Challenging IT (Intermediary Guidelines & Digital Media Ethics Code) Rules 2021, Live Law, 08-03-2021, Available at https://www.livelaw.in/top-stories/the-wire-moves-delhi-hc-challenging-itintermediary-guidelines-digital-media-ethics-coderules-2021-170905.
ABOUT THE AUTHOR(S)
Aishwarya Anand is the head and founder of Manu & Co.-Advocates & Solicitors.
Raksha Bhandari is a third law year student at Institute of Law, Nirma University, Gujarat.
Content Picture Credit: Picpedia.org
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.