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Petition against IT Rules 2021: Grounds for content removal too broad, unconstitutional

In yet another challenge to the Indian government’s IT Rules 2021, one advocate Sanjay Kumar Singh has petitioned the Delhi High Court, arguing that the Rules are unconstitutional and should be struck down. He said that multiple provisions of the Rules do not meet the constitutional requirements of placing restrictions on free speech and expression, deserve to be struck down. 

The court on Wednesday issued notice to the respondents: Union of India, MEITY, Ministry of Information & Broadcasting, and Ministry of Law & Justice. 

The Information Technology Rules 2021, notified last month, envisages tighter control on and higher due diligence by intermediaries over “unlawful content”, casting a wide net of what will be prohibited online. Under Section 3(1), intermediaries are required to remove content that is defamatory, invades another’s privacy, national security and public order, contempt of court, among multiple other grounds.

Singh prayed the the Rules be struck down, arguing that a substantial number of these grounds are too vague and broad:

  1. Content that is defamatory, invasive of another’s privacy, or libelous [Rule 3(1)(b)(ii)]
  2. Grounds of unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, public order, preventing investigation, insulting other nations [Rule 3(1)(b)(viii)]  
  3. Grounds of sovereignty and integrity, security of state, friendly relations with foreign states, public order, decency or morality, in relation to contempt of court, defamation [Rule 3(1)(b)(viii)]
  4. Grounds of partial nudity [Rule 3(2)(b)] 

Under the rules, the intermediary is required to remove content within 36 hours when it receives actual knowledge, or face imprisonment of seven years, placing any intermediary under “tremendous pressure” to remove violative content. This, coupled with the fact that the substance of the provisions are “excessively overbroad without any necessary guidelines, clarifications, or exceptions”, creates the risk of content getting removed or from ever being posted even though it may be legal. Such circumstances not only create a chilling effect on free speech, but acts as a prior restraint in posting content on intermediaries, thereby infringing the fundamental right to free speech, the petition argued.  

The rules “significantly intrude and unconstitutionally restrict” his free speech and expression on social media, Singh argues, and “flagrantly trample” the legal requirements laying down restrictions on free speech and expression. 

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Because it would not be out of place to respectfully submit that given the depth, diversity and resilience of our country; it is hard to imagine that mere tweets on Twitter or posts on other social media platform can pose any worthwhile threat to matters of integrity, security or sovereignty of India. The rules as they have been framed are far too disproportionate to any threat capable of materialising to security, integrity or sovereignty of India from tweets on Twitter or posts on other social media platforms. — Singh’s petition 

So far, the IT Rules 2021 is facing three legal challenges. Legal reporting website LiveLaw has challenged it in the Kerala High Court; the court granted a stay against any coercive action by the government against LiveLaw. Last week, the Foundation for Independent Journalism (a trust which owns The Wire), The Wire’s founding editor MK Venu, and TheNewsMinute’s editor-in-chief Dhanya Rajendran filed a plea in the Delhi High Court. The court is yet to begin hearings, but has issued notice to the central government.

Why the rules are overbroad

Elaborating on why some of the clauses are too vague, he explained the following, arguing broadly that the grounds for removal of content are too broad and unreasonable within Article 19(2):

  1. Defamation: Defamatory content is permissible under law if it is a fair comment, with all the exemptions being listed under Section 499 of the Indian Penal Code. By merely stating that defamatory content should not be posted, the rules proscribes even permissible content, thereby stifling free speech. Libellous content is also permitted under exemptions provided under Section 499 of the IPC. 
  2. Another person’s privacy: When content concerns public figures and involve public interest, it’s permissible under law even if it concerns the private lives. Further, if records available in public domain have been used, then it does not infringe privacy even if the records references private details. Further,  
  3. India’s sovereignty and integrity: Amid pressure on intermediaries to remove content and be compliant with the new rules, it is necessary to lay down clarifications and explanations to prevent chilling effect or a prior restraint regime. For instance, bona fide comments advocating India joining some group or union cannot be banned, or directed to be removed, under the grounds of being against India’s sovereignty. In the absence of guidelines clarifying what would be unlawful, grounds of blocking content around India’s sovereignty and integrity are overbroad. 
  4. Security of state: Comments that are not in violation of the Official Secrets Act or in contravention of confidentiality cannot be prohibited or blocked. This is also overbroad and does not fall under reasonable restrictions under Article 19(2). 
  5. Decency and morality are far too broad and vague. 
  6. Contempt of Court: Criticism of judgments, and of judicial officers and judges, cannot be said to be contempt of court. 

Need for judicial oversight

Wherever free speech and expression is involved, there has to be judicial or at least quasi-judicial supervision of government orders. All orders to social media companies to remove content should be subject to at least post-facto scrutiny and approval. 

Bringing in statutory rules without Parliament approval is against the doctrine of a parliamentary democracy. The Rules should have undergone parliamentary scrutiny, the petition argued.

Go beyond scope of IT Act

The Rules go noticeably beyond the scope of the IT Act, under which it has been framed. The act does not contemplate mapping out a statutory framework for publishers of either news or online curated content. Even when it comes to intermediaries, the rules have additional grounds under Shreya Singhal judgment, in which the Supreme Court had struck down Section 66A, the petition argued. 

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