Are the New Digital Regulations Unlawful?

-Kakali Das |

It’s indeed known to all that the government has decided to release new rules in order to regulate social media, digital media and the streaming platforms. On closer examination of these rules it’s obvious that this is a turning point in the history of the internet in our country, because as the rules stand right now, if they are implemented it will change the way we communicate, consume content, and the way we are informed about what’s going on in the country, because of the way they are designed. How constitutional are these rules in the way that they are designed?

Two years on from Myanmar military coup!

Are these rules constitutional because they seem to be stepping on the toes of privacy, of freedom of speech, even perhaps extending the IT Act beyond what it should be? It is a turning moment not just in how the internet will be regulated in India, but in how artistic freedom, the press, our personal communication and essentially how the citizens will be regulated as Indians. In my opinion, the rules the Ministries brought out in the 25th of February are extremely significant. As we know, it regulates the three significant categories of services – social media intermediaries, digital media and OTT platforms like Netflix, Hotstar, Amazon Prime, Zee5 etc.

No one denies that the internet or social media platforms do need to be regulated. In most constitutional democracies, the quest for regulation is a careful one, where there is a need to balance competing interests – the interest of speech and expression versus interests that we have in our society in protecting our children, in regulating hate speech and in keeping the citizens safe. We are not at issue or odds here on the needs to regulate; what we are at issue with is how the authorities regulate and how do they come up with rules that will regulate our entire fabric of thoughts and expression!

The primary question that arises – Is it a multi-lateral conversation? Did the government draw in opinions from both experts or entities that will regulate, as well as citizens? In constitutional democracies, this expectation before us bring in new legal paradigm. The concerned authorities are attempting in regulating multifarious entities which each have different end products – the purpose of OTT platforms like Netflix, Amazon Prime is storytelling with artistic freedom and entertainment in mind, the purpose of digital media, for ex, Scroll, Quint, Wire is to hold governments to account, to break stories of importance that citizens need to know about. These are two different functions with contrasting goals. These illustrations exhibit that the new rules seek to regulate two extremely different entities – the press and the entertainment with the same oversight mechanism. When we assess constitutionality, it’s not just about impugning motive. People aren’t usually interested in knowing which party is behind the passing of these laws and which is opposing it. We ought to be interested in the legality or illegality, constitutionality or unconstitutionality of any law.

These rules, too, vehemently pinpoints that these platforms should be willing to share and disclose the origin point of a message if asked for by a court, or any department of a government. This authorisation breaks entirely the whole idea of end-to-end encryption. As a result of which, these companies will no longer be able to function under their existing encrypted rule. But more importantly, the companies will actually have to trace a person sending a message and delete the content of the message within a specific timeframe. Doesn’t it violate the right to privacy given to us by the supreme court? The government cannot assess the rules in isolation. The rules exist with two other features that impact both them and us. Firstly, there is no standalone data protection law in India. There’s a bill that’s pending for years. Secondly, the 2009 variation of the IT Act already provides, in certain cases, decryption to be provided for. Now, in 2021 the government brought a third law which says that the first originators identity must be disclosed. The government already has access to the messages. How do we assess the need for legislation if the rules are disproportionate to the interests that they seek to serve? We do so by seeking the one which already exists, and what is being infringed on by what exists at present. The government already has provision for decryption, the lack of data protection law, followed by the identity of who sends out what messages. The intermediaries will require disclosing that identity, which to my mind disproportionately burdens the rights to privacy, speech, expression and conscience.

A lot in this document is papered with vague words like ‘mischievous’, ‘dangerous’, ‘unlawful’ which aren’t defined, and it’s too vague as to who makes these decisions, who decides what is mischievous or not! For an instance, let’s assume I sent a message to a friend which he/she thought was funny, then that friend sent it on to somebody else who thought it was offensive, but not in the context that I sent it to the friend. Who decides what mischief is and under what law is mischief illegal in this country?

If we look at the political substrata, the context in which these OTT platforms, social mediaries and digital media operates today, in case if any content offends a citizen, he/she gets to go to court, which these platforms are well aware of. So, the government already has existing mechanism in place; it’s not as though one finds something offensive and there’s no remedy for it. Netflix, Amazon Prime have learnt that the Indian Penal Code is extremely potent in slowing down their functioning if citizens find any content offensive. That mechanism already exists and digital media too is well-informed about it. Then, what is it that these rules are trying to mend? Why is it that both the OTT platforms and digital media will now require a grievance officer, an independent body, followed by an inter-departmental committee – an oversight mechanism established by the ministry, presumably consisting of bureaucrats?