JOIN USAn era of e-Emergency?
The Ministry of Information and Broadcasting (MIB) recently invoked emergency powers defined in Rule 16 under Part III of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021) to censor a BBC Documentary titled “India: The Modi Question”.
This is not the first time it did so.
Until the IT Rules, 2021 were notified, the MIB did not have the power to issue such orders. But it has since been fairly trigger-happy, invoking these powers on at least seven occasions earlier when it published press releases advertising the number of YouTube channels, social media accounts and websites blocked. Through these, it claims to have acted against channels or videos with over 600 crore cumulative views. The numbers potentially overstate the impact since they are likely global and not specific to India. The number of websites or accounts also do not correlate with those cited in response to a question in the Rajya Sabha in July 2022, implying there were other occasions. Meanwhile, few questions were raised about adherence to procedural safeguards, functioning of review committees, evaluation of any standards used to ascertain whether events were of an “emergency nature”, and if they were perpetual to justify continued blocking.
Thus, in an era of declining press freedom, shrinking space for expressing dissent and highly visible signs of institutional capture, the nature of attempts to restrict sharing of the BBC documentary are not an aberration but a continuing, though escalating, trend. It may be tempting to declare the efforts largely unsuccessful as they attract international scrutiny, and the content remains viewable with some effort. However, it could have chilling and longer-term effects as repeated responses of this nature continue to sow the perception among people that the risks and costs of expressing dissent are rising.
This is precisely why we need to pay close attention to recently proposed amendments to the IT Rules, 2021 that effectively place obligations on intermediaries to take action against content which has been deemed ‘false’ or ‘fake’ by the fact checking unit of the Press Information Bureau (PIB), or other agencies of the Union Government. Apart from the shortcomings of the fragmented consultation, the proposed amendments trigger other concerns too.
First, the PIB’s fact checking credentials have been far from stellar. But would the amendments be any less problematic if the PIB’s record was unblemished? The answer is a resounding ‘No’. The state must not be an arbiter of truth. Rather dangerously, the amendments attempt to place ‘fact checks’ by the PIB on par with the orders to take down content, sidestepping existing mechanisms under Section 69A of the IT Act and IT (Blocking Rules), 2009. Section 69A was upheld by the Supreme Court in Shreya Singhal vs Union of India (2015) on the basis of procedural safeguards. This must also be viewed in conjunction with press releases in December 2022 and January 2023, touting 140 ‘fact checks’. Are these to be treated as automatic take-down orders in the future?
It is also important to consider that these obligations are placed not just on social media intermediaries, but all kinds of intermediaries, including the Internet Service Providers, cloud service providers, and a range of other services that websites may use to operate. If notified, it remains to be seen whether they will be enforced across the technology stack. However, their mere existence affords undesirable discretion to the executive.
Moreover, this approach is conceptually deficient as civil society organisations, researchers, academics, and institutions question the “true v/s false” framing in the context of broader societal and psychosocial considerations in the information ecosystem. Instead of embracing the complexity, understanding the problems and clearly articulating its conception of ‘harms’ in the Indian context by encouraging research, collaborating with civil society, the executive is misdiagnosing the problem and proposing a series of fixes that hand itself potentially unchecked control over the flow of information. Once armed with such a hammer, it will wield it.
(The writer is the Policy Director at the Internet Freedom Foundation and the author of The Information Ecologist.)