A petition was filed in the Madras High Court challenging the entire purview of Intermediary Guidelines 2021 (rules for both social media intermediaries and OTT platforms, which the petitioner argued was against fundamental rights and “artistic speech” and also ultra vires to IT Act 2000. On Thursday, the Madras HC issued a notice in this regard and urged the Indian government to file a reply to the plea within three weeks, reported Bar and Bench.
The petition was filed by noted Carnatic singer and artist TM Krishna and drafted by Internet Freedom Foundation. In the petition which is available on IFF’s website, Krishna said, “..the Impugned Rules offend my right as an artist and cultural commentator by both imposing a chilling effect on free speech, and by impinging on my right to privacy. Part II of the Impugned Rules violate my rights as a user of social media services, while Part III of the same Impugned Rules is in breach of my rights as a creator of online content.”
In February this year, the Ministry of Electronics and Information Technology and the Ministry of Information and Broadcasting released the Intermediary Rules 2021 (2021 Rules), which seek to increase government control and regulation over social media intermediaries and the content posted on such platforms. Part III of the Rules also bring OTT platforms and digital news media platforms under the purview of the IT Act.
Grounds on which the petition against the Rules has been filed
- Violation of freedom of speech under Article 19(1)(a) of the Constitution;
- Violation of the freedom to practice any profession under Article 19(1)(g) of the Constitution;
- Violation of the fundamental right to privacy under Article 21 of the Constitution;
- The 2021 Rules are manifestly arbitrary and suffer from excessive delegation, thus violating Article 14 of the Constitution; and
- The 2021 Rules are ultra vires the Information Technology Act, 2000;
‘Part III of IT Rules against Right to Freedom of Expression’
Part III of the IT Rules or the ‘Code of Ethics and Procedure and Safeguards in relation to Digital Media’ seeks to regulate “publishers of news and current affairs content” and “publishers of online curated content” by imposing on them a “Code of Ethics”. This code is enforced through a three-tier regulatory mechanism: self-regulation by publishers at Level I, self regulation by self-regulating bodies of publishers at Level II, and oversight by the central government at Level III. Here are Krishna’s arguments —
It is against the Right to Freedom of Expression: Krishna said that this particular section creates a “culture of executive oversight of online speech that is wholly inimical to the right to freedom of expression”. He highlighted the imminent plight of independent creators who may find themselves “thwarted by a law that sanctions arbitrary ministerial supervision”.
Code of Ethics, vague and unclear: The Code of Ethics require online publishers to be cautious while publishing content that features activities, beliefs, practices, or views of any racial or religious group. If found in violation, the content in question may be blocked on recommendations made by the Inter Departmental Committee.
“This obligation that is imposed on the publishers is indeterminate and overbroad and is bound to have a chilling effect on speech. There can be little doubt that Article 19(I)(a) of the Constitution doesn’t provide a license for hate speech. But any law that seeks to forbid hate speech of any kind ought to be clear and precise. In the absence of clarity, the inevitable result is that publishers will block not only speech that is illegitimate but also perfectly acceptable speech that seeks to stretch the boundaries of social, religious and cultural constructs,” Krishna said in the petition.
As an artist and critic, this vagueness in the Code of Ethics is especially concerning to me. As someone interested in exploring the boundaries of Karnatic music and in taking the art form beyond its existing, narrow social confines, the endeavour of my art is to ask difficult questions. My apprehension today is that the work that I produce in trying to reshape art and in dissenting from the conventional mores of society will fall foul of the Code of Ethics contained in the Impugned Rules — TM Krishna in the petition
Ultra vires to the IT Act 2000: The petition said that the IT Act 2000 does not contemplate regulation of digital news media and publishers of online curated content, and was thus ultra vires of the IT Act 2000.
‘Part II of IT Rules against Right to Privacy’
Part II of the IT Rules or ‘Due Diligence by Intermediaries and Grievance Redressal Mechanism‘ mandate a laundry list of compliance requirements on intermediaries and social media platforms. Perhaps the mandate most worthy of concern is “traceability”, wherein significant social media intermediaries (social media companies with more than 5 million users in India) are required to enable the tracing of a message originator, potentially compromising end-t0-end encryption on their platforms. Here are Krishna’s arguments against this in the petition —
Vests private intermediaries with too much power: Krishna said that Part II gives intermediaries powers to censor free speech in the face of potential criminal liability; “with business concerns in mind, these private bodies will inevitably compromise values inherent in the idea of freedom of speech and expression”. Citing the Shreya Singhal case, Krishna said that the Supreme Court reportedly recognised that intermediaries should not be placed in a position of acting as judges and evaluating the millions of requests they receive to disable access to online content.
Function creep in the rules: The petition said that IT Rules 2021 were “offensive” because of the function creep which is allegedly manifested in Rule 4(4) of the provision — which proposes to use tools for auto-deletion of content depicting child sexual abuse and so on. “But Rule 4(4) goes beyond those aims and requires intermediaries to endeavour to use tools for auto-deletion to remove content that has previously been disabled under rule 3(1)(d) of the Impugned Rules. Thus, a technology that is apparently meant to identify information depicting rape or child sexual abuse will now be enabled to bring down other forms of content too. A function creep of this kind has a distinct and deleterious effect on fundamental rights,” the petition added.
Use of AI raises ethical concerns: Krishna argued that the usage of AI for automated identification of offensive content can lead to erroneous results. “It is submitted that the widespread belief that automated tools are somehow objective and free of human prejudices is erroneous. Big data is inherently unfair. Algorithms are written by humans and they contain within them the very same prejudices and biases that society is replete with,” Krishna said.
Artists cannot perform freely without privacy: Krishna slammed the traceability mandate of the Rules and said that it impinges on privacy. “I submit that there are few things more important to an artist than her right to privacy. Indeed, without the protection of privacy it is impossible for an artist to perform freely,” he added.
Judgements and laws cited in the petition
- S. Tamilselvan v. State of Tamil Nadu, 2016 SCCOnLine Mad 5960 (against Part III of IT Rules): The petition said that in this particular case, which pertained to the novel ‘Madhorubagan’ by Prof. Perumal Murugan, the court recognised that there was a positive duty under Article 19(1)(a) to protect artistic speech and as such, the State could not rely on its duty to maintain law and order to placate non-State actors who disagree with certain types of speech through censorship. This was reaffirmed by the Supreme Court in the case Indibily Creative Pvt Ltd. v. State of West Bengal. (2020) 12 SCC 436.
- Justice K.S. Puttaswamy vs Union of India, (2017) 10 SCC 1; and Anuradha Bhasin vs Union of India, (2020) 3 SCC 637) (against Part III of IT Rules: While referring to these two cases, the petition stated that the Supreme Court held the reasonableness of law under the test of doctrine of proportionality. The PIL said that Part III of the Rules was against the doctrines of “There must not be any less restrictive but equally effective alternative (necessity stage)” and “The measure must not have a disproportionate impact on the right holder (balancing stage)”.
- Shreya Singhal (against Part III): The petition said that Rule 3(l)(d) of the IT Rules 2021 went beyond the erstwhile Rule 3(4) of the erstwhile Intermediary Rules, 2011. “The erstwhile Rule 3(4) read with the clarification dated 18.03.2013 and Shreya Singhal (supra) made it clear that the intermediary had to only acknowledge a complaint within 36 hours and had one month to respond to the same. However, Rule 3(1)(d) of the impugned Rules requires intermediaries to act within 36 hours to disable access to the specified content.”
- ShayaraBano vs Union of India & Others (2017) 9 SCC (against Part III of IT Rules): Arguing that rules violated Article 14 and that is ‘arbitrary’, the petition cited ShayaraBano vs Union of India & Others (2017) 9 SCC which defined “manifest arbitrariness as a law made capriciously, irrationally and/or without adequate determining principle”
Prayer of the PIL
Declare IT Rules 2021 as ultra vires: The petitioner requested the Madras High Court, to issue a writ of declaration or any other appropriate Writ, Direction, or Order in declaring the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 as ultra vires
Order interim stay of the Rules: The petitioner urged the HC to grant an order of interim stay of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 pending disposal of this writ petition.