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Here’s how the IT Ministry batted for the IT Rules in the Madras High Court

The Ministry offered defending arguments in response to petitions that opposed the IT Rules on constitutional grounds.

The threat of termination of access does not induce a chilling effect on social media users, the Ministry of Electronics and Information Technology argued in a counter-affidavit defending the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules, 2021, filed in the Madras High Court on September 3. ‘Instead’, the affidavit stated, ‘it causes users to be more vigilant and mindful while posting/sharing any content online, making the internet a safe place to communicate.’

Rule 3(1)(c) of the IT Rules 2021 states that social media intermediaries have the right to ‘terminate the access or usage rights of the users’ who post or share content that does not comply with the guidelines laid down under the rules. Carnatic musician TM Krishna had earlier filed a petition arguing that the IT Rules 2021 restricted the right to freedom of expression and the right to privacy, in response to which the ministry has now filed a counter-affidavit.

From civil society members like Krishna to big tech firms like Whatsapp, many have alleged that the IT Rules are unconstitutional. There are currently 19 petitions filed against the legislation in high courts across the country. This is the first time that the government has mounted such a defence of the Rules.

Do the IT Rules threaten Freedom of Expression?

What the petition argued: Krishna had expressed concern that as a consequence of the IT Rules, ‘creators of content will self-censor themselves, and produce art that is acceptable to the state.’ To create such a chilling effect, the petition argued, is in violation of the right to freedom of speech and expression guaranteed under Article 19.

Ministry’s response: MeitY emphasised that the Rules will give recourse to ordinary users and particularly victims of online sexual abuse.

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Only such information which is, for instance, defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy etc. will be agreed by the user not to be shared. The aforesaid does not, in any way, create a chilling effect with respect exercise of freedom of speech and expression — MeitY affidavit

What the petition argued: The scope for the takedown of content under the Rules, however, is much broader. Intermediaries are prohibited, for instance, from hosting content that ‘is patently false and untrue’ or ‘threatens the unity, integrity, defence, security or sovereignty of India.’ The language of these rules ‘impose vague and opaque demands on social media intermediaries leading to a direct and tangible effect on the right to freedom of speech and expression of users.’

Ministry’s response: MeitY pointed out that these content guidelines were already part of the Intermediary Guidelines 2011, which were held as constitutionally valid by the Supreme Court in Shreya Singhal v Union of India (2015). The affidavit clarifies that clause 3(1)(c) of the IT Rules 2021, which allows intermediaries to ban users from their platforms, ‘have been notified primarily to ensure that the users comply strictly’ with the guidelines.

Breaking Encryption To Find Perpetrators of Fake News and Child Porn: MeitY

Under rule 4(2) of the IT Rules, significant social media intermediaries that provide messaging services must be able to identify the first originator of any information that they host or transmit. In effect, messaging services that offer end-to-end encryption may have to create a backdoor to fulfil requests to identify the origin of a particular message.

What the petition argued: By enabling such traceability, the rule ‘virtually ends anonymity on the internet, a right that otherwise an intrinsic facet of privacy.’

Ministry’s response: Information regarding the first originator of a message can only be procured through a judicial order. “The Central government is enlarging the present scope of the rules for effective investigation purposes only,” the affidavit said. It added that the government was seeking first-originator information to find ‘perpetrators behind publication/transmission of fake news/CSAM.’ The affidavit also argued that, with reference to the Supreme Court’s landmark Puttuswamy judgement on the right to privacy in 2017, these are reasonable grounds for exceptions to the right to privacy.

MeitY reveals 19 petitions against IT Rules pending

After Krishna filed his petition on June 10, 2021, the Madras High Court asked the union government to respond within three weeks. Explaining the delay in filing the counter-affidavit, MeitY revealed that a total of 19 writ petitions are pending in high courts across the country against the IT Rules 2021. The delay was caused, according to the counter affidavit, by the government’s effort to present a consistent stance across all high courts.

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The government has also filed a petition with the Supreme Court seeking to transfer 17 writ petitions against the IT Rules for common adjudication under the Supreme Court.

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