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#NAMA: Will IT Rules 2021 pass the muster of legal challenges?

Key takeaways

  • Court challenges will decide how much of the rules remain
  • The IT Rules 2021 seem to be overstepping the limits of subordinate legislation
  • Obligations on intermediaries will create a ‘chilling effect’ on free speech of users
  • Platforms will prefer taking down content to risk picking a fight with the government

The Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, notified earlier this year, fundamentally change how online speech is moderated. It gives significant powers to internet platforms to take down any objectionable content even without a government order. Unsurprisingly, the Rules are already subject to multiple legal challenges, most of which point out the fact the the Rules are stretching the purpose and utility of subordinate legislation. Petitioners believe that the Rules are unconstitutional.

In a panel discussion held by MediaNama on the Impact of the IT Rules 2021 on Intermediaries, experts shared their views on the legal aspects of the Rules and whether they will survive a legal challenge. The panelists included Urvashi Aneja, co-founder and director of Tandem Research; Harshitha Thammaiah, General Counsel, Xiaomi India; S Chandrasekhar, Group Director, Government Affairs & Public Policy, Microsoft (India); and Rahul Narayan, advocate-on-record at the Supreme Court. This discussion was supported by Google. All quotes have been edited for clarity and brevity.

Are the Rules constitutional?

On the face of it, the Rules are particularly good for privacy, security or our rights, said Rahul Narayan. “They make us, in a way, less free, less secure, and they adversely impact our privacy as well. I think there are certain aspects of it, which will almost certainly be read down if not actually struck down by the courts, and several others, which probably should be as well.” He added that the Rules could look considerably different from their current form once the court challenges are over.

Are the Rules constitutional? Narayan pointed out that the Rules seem to overstep the remit of subordinate legislation. “Rules typically have to be in conformity with the parent act. One of the strongest grounds of challenge in the court is that these rules go well beyond what the parent that ever envisaged. And therefore, what needed to have been done was that if you wanted to do something like this, there should have been an amendment in the law rather than making rules.”

“When you have rules which really go beyond the scope of the Act, they’re actually bypassing the role of Parliament in a way. So they’re taking power away from the representatives of the people to the government” — Rahul Narayan, advocate-on-record, Supreme Court

Can Rules create ‘social media intermediary’ definition: The parent Information Technology (IT) Act does not define social media intermediaries or significant social media intermediaries. So, can subordinate legislation create an entirely new entity like this? Narayan signalled that this was a really important question. “I think the absence of certain definitions in the Act is pretty important. Like it’s difficult for you to create a new category and define that in the rules itself, it would have been far more prudent, for example, for the Act to have been amended to make certain rules.”

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Narayan speculated that the social media intermediary definition may be added to target certain types of entities, while letting other go. But such parameters should have been there in the law itself, he added.

The flipside — parent Act can’t contain all definitions: Xiaomi’s Harshitha Thammaiah said that whether the Rules could, in fact, create new definitions was “eminently arguable.”. She argued that while the Rules are creating a completely different kind of obligation for intermediaries, it wasn’t possible for a parent Act to contain comprehensive definitions. This was especially true in fields like information technology where things were fast-moving.

“But I mean, one could certainly argue that this definition because it creates so many new obligations, particularly for this particular kind of entity, as opposed to others I think it’s arguable that this may not be constitutional” — Harshitha Thammaiah, General Counsel, Xiaomi India

Case-by-case challenge more prudent than constitutional ones: Narayan said that intermediaries may have objections if they are treated as social media intermediaries, and they should aim for a reading down of the definition in the Rules. It may be more prudent if entities challenged the Rules seeking that they not be treated as a social media intermediary. This may make  a difference, he said.

“I should imagine that there may be some clarity on this, either institutionally or because of subsequent litigation, but on the face of it, if these rules as they are being challenged now, I don’t see this as a particularly strong ground for them to be struck down. There are other important and strong grounds, but not necessarily this one,” explained Narayan.

What they mean for free speech?

Narayan argued that there are vague restrictions in the Rules, which are usually enemies of free speech. These, he argued, offered a strong ground to challenge the Rules.

Chilling effect: Narayan argued that the entire point of the Rules and was to offer certain levels of certainty. Responding to a question on whether the government could handle the regulatory burden at scale, he wondered why the general obligations were so hard to obey that nobody really knew whether they were really complying with them.

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“I mean, the entire point of this should be a certain level of legals of certainty that if I do this, I’m in compliance with the law. If I don’t do that I’m not in compliance with the law. So to some extent, to leave it a little vague, like that is sort of unfortunate. And one of the enemies of free speech is actually vague restrictions. The fact is that and this is, I mean, a far stronger ground for challenging these rules, legally, is the fact that it has a what you might call a chilling effect on free speech” —Rahul Narayan, advocate-on-record, Supreme Court

Cost of fighting for free speech is now too high: Narayan argued that obligations such as storing data for 180 days, removal of posts in 36 hours and so on made it really difficult for companies to fight for freedom of speech. When in doubt, an intermediary would simply take down or remove content, rather than risk a confrontation with the government.

“The cumulative effect of all of this is when the cost of fighting for free speech is so high, then, as a business decision, intermediaries would probably like to buckle under and wish to avoid every possibility, every possibility of controversy, how that would work is that when there is a doubt, the intermediary would just go immediately block,” he said.

By removing platforms’ power, you’ve removed people’s protections: Referring to the recent Twitter fracas with the government, wherein the company initially refused to take down tweets related to the farmers’ protests, Narayan indicated that Rules made something like this really difficult. “So when you say that you have removed the power of the big social media intermediaries to flout Indian law, what you’re actually saying is that the people who they were protecting earlier Indian citizens will now have lesser protections against the government. So, instead of power being divided into two places, the power is now accumulated actually into the one space.”

Automated takedowns and the Puttaswamy test

The Rules mandate significant social media intermediaries to, on a best efforts basis, deploy systems that can take down objectionably content. Narayan said that such a mandate isn’t in line with the Supreme Court’s Puttaswamy judgement. By preemptively policing content, it violates the essential principles of what constitutes an intermediary, he explained. “[T]he problem with automated systems, I mean, it may be a brilliant automated system, but you need some manual intervention in the end to ensure that the mechanism works properly. I don’t think it is fair or connect to have anybody deprived of anything on the basis of purely of automated thing,” he said.

Chandrasekhar agreed that automated technologies could not be 100% effective. But they were the only option considering the scale at which content is being created on the internet. “Manual adjudication is completely off the discussion. It has to be automated, we have to ensure that while it is automated, it doesn’t violate free speech and other things,” he said.

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Voluntary verification of users: what it means?

Significant social media intermediaries can allow users to voluntarily verify themselves using their identification. Does this seem like the first step towards an “Aadhaarified” social media, where everyone’s online persona is traceable. Narayan admitted that this might be the case. “Frankly, I thought the government had actually decided as a couple of years back that they’re not going to make Aadhar mandatory for social media accounts, but it seems to be the first step in that sort of industry direction, I didn’t see the utility as to why it’s done. And I don’t see any real advantages to it,” he said.

How will federated services work?

Federated architecture has gained traction in recent days, as they are thought to create generally safer online spaces than big platforms. Mastodon, for instance, has a federated architecture where there are several instances, but no centralised authority. How would such products operate under the Rules, wondered an attendee. Narayan said that on the face, it seemed difficult for such a product to comply with Rules.

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