internet surveillance

The amended IT Rules, 2021 were notified in end-October this year by MeitY, the electronics and IT ministry of the Indian government. They were withdrawn in June this year after pushback during stakeholder consultations, but even its amended version has not made much of a difference to how it is received.

The rules are a clear articulation of the desire of the ruling government to turn the internet into a managed space sans dissent and were notable for the level of government control they sought to directly impose on content hosting platforms online, particularly social media.

The amended IT Rules, like the draft telecom bill released in September and the upcoming data protection legislation, represent an important turning point in how the internet is governed in India. For this piece, I will focus on what is problematic with the IT Rules, 2021.

  1. ‘Content regulation’: The rules allow users to lodge complaints with social media companies over online content, “duties” of publishers and intermediaries under the IT Act, 2000, and “other matters pertaining to the computer resource of an intermediary or publisher”
  • What’s wrong: User ‘complaints’ are likely to become a tool to build pressure against critical publications and opinions, particularly dissenting individuals. This is likely given the mass reporting and tweeting campaigns on present-day social media.
  1. The GAC: The Rules created a government-backed ‘Grievance Redressal Committee’ which will be the final arbiter of user complaints received by social media. This received significant pushback from stakeholders on several fronts, including its independence, capacity, and legality itself.
  • What’s wrong: The GAC is likely to adjudicate in favour of the government or the party closer to its agenda when the disputed content is political and social in nature. Using social media platforms should be treated as a choice by rights-bearing citizens, where government enforcement of content regulation is needless, barring child abuse material or officially sensitive information, for example.
  • Therefore, Social media’s independence and resistance to political pressure in terms of allowed or permissible content is seriously undermined by the GAC.
  1. Media control:  By including news aggregators and publishers in their ambit, the IT Rules seek to give the government powers to directly control online news and media, by laying down a “code of ethics” for publications to follow and empowering the MieitY to seek poorly defined “information” from them as it ‘requires’. They will also be compelled to submit “compliance reports” detailing how they have handled ‘grievances’.
  • What’s wrong: These provisions, which were also challenged in court, effectively gives the government power to decide how online media should function, and what content it is allowed to host. They are answerable to the Central government as the ultimate ‘grievance redressal’ layer, which basically translates to a death blow to freedom of the press. The keys we type on may well become landmines, so to speak.
  • Users are free to not access news outlets they have supposed ‘grievances’ with. Requiring publishers to submit ‘compliance reports’ vis-à-vis grievances raised by random individuals or entities is unjustified.
  1. Censorship incoming: The IT Rules require social media platforms to “make reasonable efforts to cause users” not to post unlawful content, which includes vague terms like ‘misinformation’ and ‘obscenity’ along with ‘causing enmity between groups’
  • What’s wrong: This might lead to social media platforms pre-emptively censoring content to remain in compliance with the Rules, as many stakeholders noted in their criticism. Online content will be vulnerable to arbitrary takedowns or legal action against the originator.
  • It can lead to social media scanning and surveilling user content, blocking out alternative narratives or critical voices and building up a ‘record’ against them which may end up being used to justify de-platforming.
  • It gives social media platforms adjudicatory powers over what content is lawful, which should instead only be possible after government or court orders as per the Shreya Singhal judgement. This imperils the ‘safe harbour’ status that intermediaries enjoy.
  • Amendments to Rule 3(2)(a)(i) allow only 72 hours for intermediaries to act on content removal requests, which may rush them into proactively remove content to stay in compliance given the immense volume of complaints that are possible.
  1. ‘Misinformation’ is a red herring: The rules require intermediaries to inform users not to post content that “deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any information which is patently false or misleading”. But what is considered “patently false and misleading” can be easily swayed by agendas: for example, accusations against armed forces of human rights violations, or facts on the ground in cases of caste-based violence which differ from the official narrative.
  • What’s wrong: There is no procedure to determine what is considered ‘misinformation’ or how the intent to disseminate misinformation is to be determined. It should be up to us as users to judge the quality of information we access online, and how we choose to act on it. Social media platforms should make self-regulated efforts in this direction, but that itself should be prompted by pressure mounted by users and not by the government.
  • This again opens up the scope for pre-emptive content takedowns and increases the vulnerability of those who seek accountability from government, corporations, and public and cultural institutions.
  • It stifles reporting and documentation from a human-rights perspective and hinders the creation of a record of the State’s actions and policies from a critical lens.

More to know 

  1. Legal challenges: In May this year, Supreme Court transferred pending challenges to the IT Rules in various High Courts to itself. You can read about this and a list of the various cases here
  2. Stakeholder comments: Advocacy groups have submitted their stakeholder comments on the 2021 version and the amended 2022 version of the Rules:

Conclusion

The prospect of a free and democratic internet in India seems to be receding by the minute. This trend is in line with a broader push towards reduced internet freedoms globally as documented (again) by Freedom House in its report this year,  and the parallels with similar legislations in Nepal, Bangaldesh, Indonesia, and other countries worldwide.

Arjun Banerjee works as a sub-editor at MediaNama (www.medianama.com). Views are personal.


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