When oversight risks erosion of rights

In the amendments proposed to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, by the Ministry of Electronics and Information Technology (MeitY), there are credible reasons to fear curbs on free speech.

They go beyond the Union government’s description – “clarificatory and procedural” – and may expand the scope of executive power on the right to free speech.

The proposals seek to change some of the current rules of internet governance, especially in relation to the role of intermediaries. This framing and enforcement of rules in the realm of basic rights is being done without legislative backing.

There is also criticism against the short window – from March 30 to April 14 – for receiving public comments regarding the change of rules, considering the importance of the matter.

The amendments to the Rules entail fresh powers to the MeitY to issue clarifications, advisories, directives, and other instruments that are binding on the intermediaries but are not supported by law. The platforms will have to abide by these directions to retain their safe harbour protections under Section 79 of the IT Act. It is claimed that the intent is to ensure a “safe, trusted, and accountable internet”, but the proposal appears to be facilitating a regime that favours control to the detriment of freedom.

The government is empowering itself without the support of laws, and is demanding compliance with rules that are framed arbitrarily in the form of advisories and clarifications. So far, intermediary platforms’ safe harbour rights have not been conditional on compliance with government advisories. Altering this arrangement will make the platforms liable for all published content. When the rules are vague, the intermediaries would err on the side of caution. The casualty would be the digital rights of users.

The proposals seek a widening of content oversight. An inter-departmental committee will be set up to bring the intermediaries and news content generated by users under its purview. This can lead to more stringent scrutiny of online communication.

The new system envisages the treatment of everyday users and influencers on par with digital news publishers in terms of compliance obligations. This means that independent social media users and influencers who share news- or current affairs-based content online from external sources may be brought under government oversight.

This will severely impact the free expression of news and views. The intent here may be projected as cautionary – checking disinformation – but the move risks limiting the voices of people on public platforms.