Updated: Mar 11
Jodhpur: New rules to regulate digital media and online streaming platforms, made official by the Centre on 25 February 2021, are fraught with inconsistencies, ambiguities, go beyond the authority of the government to promulgate and appear to be against constitutional provisions.
The government does not have legislative backing to frame rules to govern OTTs and online publishers of news. Under the IT Act, the government can make rules only for intermediaries and the definition of intermediaries is not broad enough to cover OTTs and online media.
The rules violate rights guaranteed under Part III of the Constitution, and disproportionately impact the freedom of speech and expression, freedom of press, privacy and creative thinking. The apparent vagueness renders the rules unconstitutional and result in a concentration of power in the hands of the Executive by granting it adjudicatory powers.
The new rules were challenged in the Delhi High Court on 6 March by independent website The Wire and The News Minute as posing “profound and serious harms for digital news media… and destructive of their rights”. The case is being heard by a division bench headed by Chief Justice DN Patel.
Nithya Ramakrishnan, lawyer for the petitioners, told the court that the new rules, in particular those that relate to the digital news media, “go far beyond anything that is permissible in a democracy”. The High Court will hear the case on 16 April.
On 9 November 2020, the central government issued a notification to bring OTT (over the top) or streaming platforms under the ambit of the Ministry of Information and Broadcasting. These regulations were notified even though major OTT platforms had already announced a self-regulatory framework, the Universal Self-Regulation Code (USRC), backed by the Internet and Mobile Association of India (IAMAI).
As many as 17 major OTT platforms adopted an ‘implementation toolkit’ for self-regulation. The government rejected the USRC, remarking that guidelines would be issued soon. On 25 February 2021, the government notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021, to regulate OTT platforms, such as Netflix and Amazon Prime, intermediaries, such as Whatsapp and Signal, and digital media platforms, such as Article 14.
Not only are the new rules fraught with inconsistencies and ambiguities, they transgress judicial authority, weaken the democratic process and open themselves to possible constitutional challenges.
Govt Deploys Powers It Does Not Have
The executive has no authority to legislate; it only takes over delegated legislation (delegation of legislative power by the Parliament to the government or agent of lower rank) as per the enabling law or parent act. In KN Guruswamy vs State of Mysore, 1954, the Supreme Court held that any executive action cannot contravene a parent act or exceed the powers granted by the parent act. Justice Vivian Bose remarked that “rules bind state and subject alike”.
The new rules are enacted under sections 69A(2); 79(2)(c); 87(1); 87(2)(z) & (zg) of the Information Technology (IT) Act, 2000. These provisions grant the government the power to make rules for an intermediary only.
According to section 2(1)(w), an intermediary “means any person who, on behalf of another person, receives, stores or transmits” information. The Supreme Court held in Shreya Singhal v Union of India, 2015, that Internet intermediaries are merely facilitators of content. A 2010 Organisation for EconomicCo-operation and Development (OECD) report, The Economic And Social Role Of Internet Intermediaries , defines intermediaries within the same boundaries explaining that they “do not themselves create or own the content being published or broadcast”.
These rules apply to intermediaries, OTT platforms and cover online publishers of news (rule 7), which create and own published content. Since the IT Act grants power to make rules for intermediaries only and the definition of intermediaries is not broad enough to cover OTT and publishers of news, the Rules exceed the authority granted by the parent act and are consequently unconstitutional.
Fundamental Rights Are Violated
The new rules are rife with provisions that violate fundamental rights guaranteed under Part III of the Constitution.
First, there is a plethora of vague terms in the Rules. For instance, “insulting”, “libellous” or “inconsistent”. It is a fundamental rule in legal jurisprudence that the governed must be given an opportunity to understand and comprehend what is prohibited. Vague terms lead to an overly broad law that leads to a chilling effect on rights.
The Supreme Court struck down section 66A of the IT Act (the Shreya Singhal case), which too contained the term “insult”. Incorporating such terms again in any rule or legislation is an outright rejection of the Constitutional Court’s interpretation of fundamental freedoms and the Constitution.
Second, since 2017 privacy is a fundamental right in India (Justice K.S. Puttaswamy vs Union of India), yet no data protection law has been enacted to safeguard the rights. Rule 4(2), Part II of the Rules covering Due Diligence by Intermediaries mandates that intermediaries providing services primarily relating to messaging shall enable identification of the first originator of the information.
This implies the termination of end-to-end encryption. Identification of originators is desirable in situations that lead to the disruption of public order; however, it cannot be at the cost of outright violation of privacy.
India does not have data protection legislation or appropriate awareness about the value of privacy. As Chief Judge of the United States Court of Appeals for the Seventh Circuit, Richard Posner, observed in Privacy, Surveillance, and Law (2008), even though “people value their informational privacy.…, they surrender it at the drop of a hat”. Posner said people might be willing to reveal information, and in the interest of the nation, they might accept diminished privacy, however, only if it is used for the said purpose.
Third, the rules have a disproportionate penalty for intermediaries who fail to observe “due diligence”—tier III of the regulation calls for an inter-departmental committee that can impose a “take-down order”.
If the company or nonprofit in question does not appear before the committee, it can proceed “ex-parte”. An important feature of proportionality is the adoption of the least restrictive measure.
The power to impose a take-down order contradicts it directly. Furthermore, the option of proceeding ex-parte is a more blatant violation of the principle. Instead of a notice and take-down procedure, a notice-to-notice procedure would be more appropriate, which means the complainant will send a notice against which the concerned platform can file a counter-notice or remove the content. If the complainant is not satisfied with the counter-notice, he may proceed under appropriate law against the platform. The platform gets a choice and the adjudication, if at all required, will be by the court.
No Legislative Backing
It might be argued that the state has executive power on matters over which legislation may be passed, as was held in Ram Jawaya Kapur v State of Punjab, 1955. However, this does not mean that the state has unsanctioned power. It is a fundamental concept in constitutional law that state actions affecting fundamental rights must be backed by legislation passed by the Parliament.
The Supreme Court has repeatedly held (here, here and here) that measures that curtail fundamental rights or freedoms must have legislative backing; executive power cannot be used to achieve these ends (State of Madhya Pradesh vs Thakur Bharat Singh, 1967).
Since no legislation permits making rules to regulate OTT platforms or online journalism, the new rules are unconstitutional without an enabling law.
Powers Concentrated With Bureaucrats
In a constitutional democracy, separation of powers between judiciary and executive is a sine qua non.
As British philosopher A C Grayling writes, the intention is to prevent the concentration of power and prohibit one branch from exercising the core functions of the other.
However, the tier III mechanism establishes inter-departmental committees with representatives from concerned ministers. The constitution of this committee is purely given to the executive, including the chairman, who is an “Authorised Officer” not below the rank of joint secretary.
This committee, according to the concept of separation of powers, cannot be granted the power to adjudicate over complaints regarding the content of OTT, publisher of news or even intermediaries.
Leaving the interpretation of terms in the act, such as “public order”, “insulting”, “inconsistent”, to the executive might lead to absurd interpretations, even with benevolent intentions. Even if the exercise is effective, the adjudication of disputes is a core function of the judiciary, not the executive.
Other Concerns
The Rules mandate the appointment of a grievance redressal officer (Rule 10) at level I of the self-regulating mechanism. At Level II, the entities have to constitute an association and then form a self-regulating body; both will be registered. One of the concerns this raises, apart from the cumbersome structure, is the financial burden, especially on platforms that promote independent journalism.
Another flaw is that the tier-III committee of bureaucrats has been given the power to regulate OTT, intermediaries and the media. Publishers of news, in print and online, are already governed by the Press Council of India.
What Can Be Done Now
It may be argued (here and here) that regulation is necessary. If so, the question is not whether to regulate but how to regulate. Apart from the fact that an enabling law, presented to Parliament, is required to regulate OTT platforms and digital media, not the IT Act, the slippery slopes, ambiguities and concentration of power in the executive must be addressed to maintain India’s democratic character.
Regulatory measures could be borrowed from the United Kingdom’s Ofcom which regulates telecommunication, broadcasting, radio, mobile phones and other devices that run on airwaves.
Ofcom is paid and funded by the companies it regulates and functions independent of the government. It has monthly meetings and its workings are transparent to the public, uploading as it does the minutes of each meeting on its website.
A feature of deliberative democracy is not just that rules bind the state and subject alike but also that the state and the subject get an equal say in the formation of those rules. The government should have consulted the stakeholders to effectively lay down regulations and not take over independent journalism, freedom of thought, creative thinking and the principles of democracy as a whole.
(Prakhar Raghuvanshi is a third-year law student at the National Law University, Jodhpur.)