Is the Freedom of Expression Under Threat: The IT Rules, 2021 Explained

The newly enacted the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – or IT Rules, 2021, for short – have been criticised for infringing on people’s right to privacy and freedom of expression. Many people have expressed fear that the new provisions will be used by the government to silence their publicly expressed opinions and access their privately held conversations. These concerns are valid, given the abundance of routine misuse of power by political leaders to target people over dissent and criticism. Any claim of laws being used only for their stated objectives and not to hound political dissidents comes from a place of naivety and ignorance of India’s administrative and judicial landscape. People are charged under various laws; the investigative process and trial period in court ends up taking years; and the process becomes a form of punishment itself.

So, are any of the fundamental rights in danger?

Ironically, it is the very misuse of laws to target genuine criticism that proves that the people need not fear any infringement of their rights of privacy and expression. The governments do not need new rules to go after common citizens and their political rivals; they have more than enough existing laws that fulfil this purpose. Moreover, they have all been upheld to be in alignment with the constitution by the Supreme Court as well.

Thus, the IT Rules, 2021 have no effect on the powers of government agencies to charge people and put them under trial – they have been doing this for decades. This dark albeit realist take on the rules is not to argue in favour of the rules; rather, it necessary if one truly wishes to understand the agenda behind them. The IT Rules 2021 deal less with the concerns of how to deal with public opinion than they do with the battle for power between the Indian State and the Big Tech.

How is it related to the Big Tech?

The Big Tech refers to IT companies who enjoy a collective monopoly over the internet space. Companies such as Google, Twitter, Facebook (with WhatsApp and Instagram) control the digital space of social media almost between themselves. For long, tech companies, like Facebook and Twitter, have maintained that they are mere intermediary platforms. This position entails that the nature of the content on these platforms are the responsibility of the users and not of the companies themselves. They are a merely “service provider” and not a party to any exchange of information and data on the platform. Thus, they are not liable for any legal repercussions if a user violates any law of the land.

Yet, time and again this role has been overstepped by these billion-dollar giants. Google and Facebook have been reported to filter out which news gets preference based on the money they receive from the publishers. Twitter, recently, got into a conflict with the Indian authorities over its act of deeming tweets by political individuals with “Manipulated Media” tag. Both these incidents showcase an active role played by these platforms – that of becoming an Editor of the content on their platforms.

What role do the companies play?

The issue in the conflicting positions by the Big Tech brings in the matter of legal accountability. In the case of Twitter, it made itself a party to both the national discourse as well as the police investigation which is expected to deem whether the charges made by a political party against another were true or fabricated. By doing so, it opened up a plethora of legal loopholes and ethical standpoints that are irrelevant to the credibility of the original allegations and counter-allegations made by political parties and common public alike. Some of the questions raised in the fiasco are:

Whether an intermediary can edit or influence the content and other forms of expression as to how they will reach other users?

If it can, is it comparable to judgements by the Indian courts and what if the court deems the opposite stand in its verdict?

Since a newspaper or a fact-checker organisation is liable to be taken to court for the reports it publishes, where they must prove claims, what judicial oversight is present for the Big Tech?

What is the primary objective of the new rules?

So far, the Big Tech has evaded any scrutiny by offhandedly replying to any and all judicial questioning with this phrase: “Go to America. We are just a marketing enterprise”. In the absence of a legal framework, the Indian Legal System has been struggling with these questions much before the Twitter incident of May 2021. In the endeavour to resolve them, the IT Rules, 2021 were drafted and have been in force since 25th February 2021 as well. The rules define the role of the companies to what they claim – an intermediary platform. Further, if they choose to take on the role of editor at the same time, then they will be treated as editors. In such a scenario, the rules dictate that they will be subjected to the same laws as the users themselves. Thus, the legal immunity the Big Tech has proclaimed since the advent of digital era has now been replaced by legal framework of operations.

What about the common public and their rights?

Article 19, which gives us the freedom of expression, and Article 21, which gives us the right to privacy, have always had restrictions within the constitutional ambit:

“reasonable restrictions…in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality” and “No person shall be deprived of his life or personal liberty except according to procedure established by law”.

In other words, it is since 26 January 1950 that anyone can be charged on account of being in violation of these limits. Making or repealing of laws will continue to have no effect on the mental, emotional and psychological duress that one goes through due to a politically charged case. It is the excruciatingly slow judicial process in Indian courts that allows governments to harass people by turning the trial period into an inherent punishment.

Does this mean the common citizens must give up all rights?

Unfortunately, one must accept that every law is and will be misused. Further, the power to deem any particular case as being politically charged or manipulated resides with the Indian courts; neither with a foreign company, nor with the common public. Advocating in the favour of constitutional authority must not be equated with condoning the frequent harassment of citizens by authorities. It is a reality that the governments weaponize legal frameworks which cannot be done away with in its entirety to go after their critics, instead of engaging them politically. Therefore, a new reality ought to be imagined and forged that balances the rights alongside the freedom and goes beyond the dichotomy of unjustified restrictions on the society and unchecked threat to society itself.

To its credit, the Supreme Court recently announced to take up the sedition law and define what constitutes as “the interests of the sovereignty and integrity of India, the security of the State”. Another welcome step will be to neutralise the aspect of the laws that allows for their misuse – by speeding up the investigative and the judicial process. Through this, the Judiciary organ of the State can effectively keep the Executive in check without compromising on the matter of national security and integrity.