The government’s new rules for digital news platforms -- which involve a three-tier structure of regulation with a government committee at its apex -- go against the fundamental principle of news and its role in a democracy, and will have a chilling effect on the freedom of press and speech, whilst also resulting in government control rather than regulation, say digital news platforms and digital liberty organisations.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 were released by the government last week.

“These rules in some places appear to go against the fundamental principle of news and its role in a democracy. While rules and laws already exist to hold news media accountable, the aforesaid rules enable the executive government to even remove content published as current affairs or news (Rule 14.) among other things,” said DigiPub News India Foundation - a consortium of digital news organisations - in its letter to the Union Minister for I&B and Union Minister for Electronics and IT. The foundation includes organisations like Alt News, Article 14, Newslaundry, Scroll, The Quint, The News Minute and The Wire.

A publication relating to current affairs represents not only the author or publisher’s fundamental right to expression under Article 19(1)(a) of the Constitution, but also the citizen’s right to be informed and to have access to differing viewpoints, the letter further stated. “For the executive to have the absolute power to regulate the content of news portals or publications would be to strike not only at the constitutional scheme but at democracy itself,” it said.

The new rules expand on alarming human rights infringing measures, and appear to force a government-created Code of Ethics on online news, current affairs, and curated content websites, along with imposing a requirement to create multi-tiered self-regulatory mechanisms, that must be reported on to the Ministry of Information and Broadcasting (I&B Ministry), said Access Now, an internet freedom advocacy group in a statement .

The new rules also talk about ‘blocking of information in case of emergency.’ “In case of emergency nature, the Secretary, Ministry of Information and Broadcasting may, if he is satisfied that it is necessary or expedient and justifiable for blocking for public access of any information or part thereof through any computer resource and after recording reasons in writing, as an interim measure issue such directions as he may consider necessary to such identified or identifiable persons, publishers or intermediary in control of such computer resource hosting such information or part thereof without giving him an opportunity of hearing,” the rules state.

That the new digital news media rules give “emergency” powers to the Secretary in the I&B ministry to directly take down content without giving hearing to the publishers is draconian, and such executive powers are a clear violation of law as well as an assault on democracy, said MK Venu, Founding Editor, The Wire, in a tweet .

Giving the power to the I&B Ministry to decide what content is aired and what content gets blocked, and extending that control even over news content, will have a chilling effect on the right to freedom of speech and expression, said digital rights organisation, SFLC.in, in a statement on February 27. The rules set a dangerous precedent where freedom of speech and expression, the freedom of press and the right to dissent will all be at the mercy of the government or its agencies, it further stated.

“A current affairs portal is by and large, a written newspaper in the digital format. From the early 1950s, with the setting up of the Press Council, the idea has been that the written medium be kept away from all executive interference in the interest of not just the publication, but of the wider public to ensure the widest possible dissemination of news and ideas. Even the small-screen has been left by and large to regulate itself without any executive interference, i.e., through the NBSA. We believe to subject the digital medium to executive control in the manner provided for by the rules would be unfair and overarching,” affirmed DigiPub in its letter.

The letter said that the foundation had written to the I&B Ministry on December 2, 2020, requesting to be part of a consultation process, but that it never received a reply. “We believe it is still not too late. We request you to repeal these Rules, or at least put them on hold, until meaningful consultations are undertaken with all the stakeholders,” it concluded.

The Rules now will bring government control rather than regulation over digital news platforms and OTT video content providers, said Internet Freedom Foundation (IFF) in a statement . Several requirements under them suffer from unconstitutionality and undermine the free expression and privacy for millions of internet users in India, it added.

Furthermore, digital news media and OTT platforms were not previously regulated under the provisions of the IT Act, and this was changed with a notification under the Business of Allocation Rules, IFF pointed out. “But this notification only confers administrative clarity on which ministry gets to administer the sector. It does not create the power to exercise it. For this, a clear parliamentary enactment is necessary. However, instead of going to Parliament, the Intermediary Rules framed under the IT Act seek to expand the scope of regulation under the purview of the IT Act to include digital news media and OTT platforms. This amounts to the executive amending parliamentary legislation and is not permissible under the Constitution,” it explained.

Moreover, any person is empowered to make a complaint with the publisher, and the publisher must respond within 15 days, or risk censure, said IFF. “In terms of what this means for the regular internet-user, digital news media will have to edit their coverage to keep in mind the arbitrary manner in which overbroad restrictions are applied, particularly when the news is not favourable to the government,” it cautioned.

While level II of the 3-tier mechanism is framed as the second layer of self-regulation, it is in fact the first layer of government control, said IFF, pointing you that even though the body is ostensibly expected to be appointed or elected by the media community, the I&B Ministry retains approval power over the composition of the body.

“The government has armed itself with legal measures to directly monitor and oversee online news services and video streaming at a time when there are significant concerns about expanded online censorship and harassment by government agencies in India — and across the globe — targeting peaceful protesters, critics, and artists speaking up for democracy,” said Eliška Pírková, Global Content Governance Lead at Access Now.

Touted as a “soft-touch oversight mechanism” by the government, the new IT rules establish a three-level grievance redressal mechanism. At the first level is the self-regulation by publishers wherein the publisher appoints a grievance redressal officer based in India, who will have to take decision on every grievance within 15 days of receiving it.

At the second level, the grievance can be escalated to ‘self-regulation by the self-regulating bodies of the publishers’ - one or more self-regulatory bodies of publishers - which will have to register with the Ministry of Information and Broadcasting (I&B Ministry). Such a body will be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members, the government said. This body will oversee the adherence by the publisher to the Code of Ethics, and address grievances that have not been resolved by the publisher within 15 days.

Where the complainant is not satisfied with the decision of the self-regulating body, it can be escalated to the third level, which is the oversight mechanism, formulated by the I&B Ministry. “It shall publish a charter for self-regulating bodies, including Codes of Practices. It shall establish an Inter-Departmental Committee for hearing grievances,” the government said in its press note. This Inter-Departmental Committee will consist of representatives from the I&B Ministry, Ministry of Women and Child Development, Ministry of Law and Justice, Ministry of Home Affairs, Ministry of Electronics and Information Technology, and other such ministries.