Concern over digital media super-blocker rule

Code empowers I&B secretary to block online content without hearing the platforms

The rule is expected to give the government control over content on social media, digital news portals and over-the-top (OTT) platforms: Shutterstock

Anita Joshua   |   TT   |   New Delhi   |    28.02.21 :  A rule in the new digital media code that grants emergency powers to the Union information and broadcasting secretary  to block online content without having to hear out the platforms has triggered widespread concern.

The rule — known as Rule 16 under Part III of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 -– is expected to give the government control over content on social media, digital news portals and over-the-top (OTT) platforms.

The rules have also triggered fears that they will help the government arrogate to itself the role of an adjudicator on defamation.

The Union information and broadcasting ministry on Saturday sought to allay the fears by saying that the provision has always been there in the law books.

Referring to the misgivings, the ministry said this provision was a copy-paste of what had been exercised by the ministry of electronics and information technology for the past 11 years under the information technology (procedure and safeguards for blocking for access of information by public) Rules, 2009.

“Since Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 would be administered by the ministry of information and broadcasting, the reference to secretary MeITY has been replaced by secretary, ministry of information and broadcasting. There is no new provision which has been made,” the ministry said.

In the new code, Rule 16 can be invoked when “no delay is acceptable”.

According to Section 69A of the IT Act, the instances when such emergency powers can be invoked are when the sovereignty and integrity of India or the defence of India or  the security of the state or friendly relations with foreign states or public order is at stake. They can be invoked for preventing incitement of the commission of a cognisable offence.

However, according to the Internet Freedom Foundation (IFF) — a digital liberties organisation that seeks to ensure that technology respects fundamental rights — digital news media and OTT platforms like Netflix, Amazon Prime and Disney-Hotstar were not previously regulated under the provisions of the IT Act.

On November 10, 2020, the Centre  issued a notification under the business allocation rules to bring such platforms under the ambit of the information and broadcasting ministry.

The Foundation maintains that the November notification only confers administrative clarity on which ministry gets to administer the sector.

“It does not create the power to exercise it. For this, a clear parliamentary enactment is necessary. However, instead of going to Parliament, the Intermediary Rules framed under the IT Act seek to expand the scope of regulation under the purview of the IT Act to include digital news media and OTT platforms. This amounts to the executive amending parliamentary legislation and is not permissible under the Constitution,” the Foundation said.

Digipub News India Foundation, an association of digital publications of news and current affairs, too red-flagged the emergency provision.

The association stated that in some places, the rules appeared to go against the fundamental principle of news and its role in a democracy.

“We draw your attention to the well-settled jurisprudence on news media. A publication relating to current affairs represents not only the author or publisher’s fundamental right to expression under Article 19(1)(a) of the Constitution but also the citizen’s right to be informed and to have access to differing viewpoints. For the executive to have the absolute power to regulate the content of news portals or publications would be to strike not only at the constitutional scheme but at democracy itself.”

It countered the government’s claim of creating a level playing field for all forms of media,  pointing out that both print and the electronic media have been fairly insulated from executive interference.

According to the Digipub Foundation, it is unfair and overarching to subject the digital medium to executive control in the manner provided for by the rules.

Digipub has also flagged the bypassing of the legal process in the case of defamation complaints.

 “In the rules as drafted, expression may invite adverse consequential action, such as in the case of defamation. Such action should only happen after adjudication by open courts of law, on legal principles. This entire legal process is bypassed by the rules, in as much as, upon a complaint of defamation, a body consisting of bureaucrats and controlled by the central government may decide the merits and block access to the content of any current affairs publication.”

Recognising that freedom of expression is subject to reasonable restrictions, Digipub said: “These restrictions must be demonstrably and strictly necessary to the interests enumerated in Article 19(2), and must also be reasonable, fair and just. To empower a body of government servants to do so could inhibit the news media from doing its job.”