The recently notified Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) are the result of multiple calls over the last few years for the regulation of digital content platforms, particularly social media intermediaries, OTT platforms and digital news services. Three particular strands of concern have coalesced into these calls: the growing menace of fake news, that has on occasion even resulted in deaths; the proliferation of online streaming platforms carrying un-moderated content that on other media (cinemas, television) has been subject to reasonably stringent regulation; and the increasing anxieties expressed over the power of “big tech” firms such as Twitter and Facebook, raising the need for regulations to curb their influence.
The IT Rules have come under criticism since their launch, with complaints of regulatory over-breadth and overreach. As many as five petitions have been filed in court challenging the Rules. Common objections include traceability, automated content removal, and takedown requirements for intermediaries; and the role of the government in grievance redressal for digital media and online curated content providers. Most of these objections have been articulated procedurally: that in seeking to impose these regulations, the rules are ultra vires the parent Act because they exceed the scope of what it permits, especially in terms of content blocking and takedown, and regulation of digital media platforms. These procedural objections are important, because delegated legislation is legally enforceable only when it is within the ambit of what is permitted under the parent law. However, while adherence to process is essential, there is a need for a strong substantive argument as well.
Recent experiences have shown us that a government that has Parliamentary majority can easily overcome procedural hurdles. And Parliamentary approval is not a guarantee for better regulations: take the Cable Television Networks (Regulation) Act, 1995, enacted in response to judicial observations regarding the regulation of cable TV, which as a medium was as new to the country then as digital media and online curated content are today. It resulted in a Programme Code that is applicable to all TV content, which does not seem to have been subject to any serious scrutiny despite several provisions being extremely vague and problematic. It is this Programme Code that the IT Rules extend to online content as well.
The key to good regulation is taking a principled approach to the issue at large, rather than knee-jerk reactions to an immediate problem. In the past, courts have asked for stringent internet regulation only in response to PILs that have highlighted an immediate crisis: ads for pre-natal sex determination, rape videos circulating online, online content accused of hurting religious sentiments, etc. Even with the IT Rules, the apex court mentioned that the rules have “no teeth” and has called for a legislation as instead. The argument that the IT Act does not permit regulation of digital media and the same should be done through Parliament is necessary but not sufficient, because while it may stymie the present Rules, it does not consider the consequences of their provisions being translated into a law. Hence, it is fundamental to scrutinise these Rules on first principles.
What would this look like? Substantively, it would involve a nuanced exploration of Fundamental Rights, especially Article 19(1)(a) on freedom of speech and expression and look at whether restrictions being placed on them through the regulations are necessary, reasonable, and proportionate. Procedurally, they would engage with tenets of participatory democracy: wide-ranging consultations, with all stakeholders being given the opportunity to comment and all concerns being taken on board. Neither process seems to have been followed while drafting the present IT Rules.
If we look at the regulatory aspects of the IT Rules, they require firms to submit and comply, rather than appropriately incentivise conduct. This has also revealed new fears about how this regulatory approach can deter the exercise of individual rights, for the current course seems to indicate that the government is attempting – similar to its attempts with the Personal Data Protection Bill (“PDP Bill”) –to eliminate the power of digital firms through its regulatory muscle, instead of creating a stable Indian internet ecosystem that incorporates independent checks and balances. It is also important to note here that the new rules have been enforced without a strong data governance framework. Moreover, the I&B Ministry’s claim to regulate content under the IT Rules is contrary to modern practice, including the Indian experience, of having regulatory bodies independent from the Government.
The IT Rules are symptomatic of a new kind of regulatory ecosystem emerging in India, also reflected in the PDP Bill’s call for data localisation. Besides being devoid of a principle-based approach, they make it clear that political economy is at the heart of India’s internet regulation. Are they preliminary markers to a digital nationalism – an “aatmanirbhar bharat” that runs the risk of eliding the difference between the nation and the government in power? Should power over the internet be concentrated in the hands of the state, rather than individual users? Answers to these larger questions will come only from a deeper understanding of the political economy of the state. To get them, we must argue on first principles, and not just on procedure.