Comments on the draft amendments to the IT Rules (Jan 2023)

The Ministry of Electronics and Information Technology (“MeitY”) proposed amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) on January 17, 2023. The draft amendments aim to regulate online gaming, but also seek to have intermediaries “make reasonable efforts” to cause their users not to upload or share content identified as “fake” or “false” by the Press Information Bureau (“PIB”), any Union Government department or authorised agency (See proposed amendment to Rule 3(1)(b)(v).) The draft amendments in their current form raise certain concerns that we believe merit additional scrutiny.  

CCG submitted comments on the proposed amendment to Rule 3(1)(b)(v), highlighting its key feedback and concerns. The comments were authored by Archit Lohani and Vasudev Devadasan and reviewed by Sachin Dhawan and Jhalak M. Kakkar. Some of the key issues raised in our comments are summarised below.

1. Misinformation, fake, and false, include both unlawful and lawful expression

The proposed amendment does not define the term “misinformation” or provide any guidance on how determinations that content is “fake” or “false” are arrived at. Misinformation can include various forms of content, and experts have identified up to seven subtypes of misinformation such as: imposter content; fabricated content; false connection; false context; manipulated content; misleading content; and satire or parody. Different subtypes of misinformation can cause different types of harm (or no harm at all) and are treated differently under the law. Misinformation or false information thus includes both lawful and unlawful speech (e.g., satire is constitutionally protected speech).  

Within the broad ambit of misinformation, the draft amendment does not provide sufficient guidance to the PIB and government departments on what sort of expression is permissible and what should be restricted. The draft amendment effectively provides them with unfettered discretion to restrict both unlawful and lawful speech. When seeking to regulate misinformation, experts, platforms, and other countries have drawn up detailed definitions that take into consideration factors such as intention, form of sharing, virality, context, impact, public interest value, and public participation value. These definitions recognize the potential multiplicity of context, content, and propagation techniques. In the absence of clarity over what types of content may be restricted based on a clear definition of misinformation, the draft amendment will restrict both unlawful speech and constitutionally protected speech. It will thus constitute an overbroad restriction on free speech.

2. Restricting information solely on the ground that it is “false” is constitutionally impermissible

Article 19(2) of the Indian Constitution allows the government to place reasonable restrictions on free speech in the interest of the sovereignty, integrity, or security of India, its friendly relations with foreign States, public order, decency or morality, or contempt of court. The Supreme Court has ruled that these grounds are exhaustive and speech cannot be restricted for reasons beyond Article 19(2), including where the government seeks to block content online. Crucially, Article 19(2) does not permit the State to restrict speech on the ground that it is false. If the government were to restrict “false information that may imminently cause violence”, such a restriction would be permissible as it would relate to the ground of “public order” in Article 19(2). However, if enacted, the draft amendment would restrict online speech solely on the ground that it is declared “false” or “fake” by the Union Government. This amounts to a State restriction on speech for reasons beyond those outlined in Article 19(2), and would thus be unconstitutional. Restrictions on free speech must have a direct connection to the grounds outlined in Article 19(2) and must be a necessary and proportionate restriction on citizens’ rights.

3. Amendment does not adhere with the procedures set out in Section 69A of the IT Act

The Supreme Court upheld Section 69A of the IT Act in Shreya Singhal v Union of India inter alia because it permitted the government blocking of online content only on grounds consistent with Article 19(2) and provided important procedural safeguards, including a notice, hearing, and written order of blocking that can be challenged in court. Therefore, it is evident that the constitutionality of the government’s blocking power over is contingent on the substantive and procedural safeguards provided by Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. The proposed amendment to the Intermediary Guidelines would permit the Union Government to restrict online speech in a manner that does not adhere to these safeguards. It would permit the blocking of content on grounds beyond those specified in Article 19(2), based on a unilateral determination by the Union Government, without a specific procedure for notice, hearing, or a written order.

4. Alternate methods to counter the spread of misinformation

Any response to misinformation on social media platforms should be based on empirical evidence on the prevalence and harms of misinformation on social media. Thus, as a first step, social media companies should be required to provide greater transparency and facilitate researcher access to data. There are alternative methods to regulate the spread of misinformation that may be more effective and preserve free expression, such as labelling or flagging misinformation. We note that there does not yet exist widespread legal and industry consensus on standards for independent fact-checking, but organisations such as the ‘International Fact-Checking Network’ (IFCN) have laid down certain principles that independent fact-checking organisations should comply with. Having platforms label content pursuant to IFCN fact checks, and even notify users when the content they have interacted with has subsequently been flagged by an IFCN fact checker would provide users with valuable informational context without requiring content removal.

Supreme Court’s National Anthem Order: Forced Patriotism vs. Freedom of Expression

By Kasturika Kaumudi

This post discusses the Supreme Court’s order mandating playing of the national anthem in all movie theatres and the incongruities that emerge from it vis-à-vis freedom of expression. The post seeks to highlight the fundamental problem of making patriotism a forced expression.

In a widely criticized move, a Supreme Court bench ruled that it is mandatory for movie theaters to play the national anthem before the screening of every movie. The Court also cast upon all cinema goers the obligation to stand up during the national anthem in a cinema hall.

The purpose for the measure as cited by the Court was to ‘instill the feeling of committed patriotism and nationalism within one’. It is, however, difficult to understand how playing the national anthem, particularly at cinemas, which are essentially a recreational avenue, will guarantee patriotic feelings.

Patriotism and Freedom of Expression:

Patriotism is a very personal sentiment and an individual’s right to express it in her own way is ingrained in the constitutional right to freedom of expression. To fortify this argument a parallel can be drawn to the reasoning adopted by the Supreme Court in its 1986 ruling in Bijoe Emmanuel vs. State of Kerala. Here, the Apex Court had extended protection to children belonging to the Jehovah’s Witness sect, who had refused to sing the national anthem during a school assembly. The Court, while upholding the children’s right to freedom of speech and expression and right to religion categorically held, “..There is no provision of law which obliges anyone to sing the National Anthem…”

Similarly, the US Supreme Court in the landmark case of West Virginia State Board of Education vs. Barnette, held illegal a resolution that allowed schools to expel its students who refused to salute the flag and undertake the Pledge of Allegiance. The US Supreme Court held that forcing students to salute and recite the Pledge constituted compelled speech and violated the right to free speech and expression guaranteed under the First Amendment. The majority decision given by Justice Robert Jackson held,

“If there is any fixed star in our Constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. …We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

The tenor of the order of the Indian Supreme Court implies forced patriotism, while such mandated displays of patriotism go against the very grain of freedom of expression. The Court in Excel Wear Etc. vs. Union of India held that the fundamental right under Article 19 has reciprocal rights i.e. the “right to freedom of speech includes the right not to speak and the right not to form an association is inherent in the right to form associations”. Correspondingly, the right to expression under Article 19 should also encompass within it a right not to express. The expression of patriotism should be left to an individual’s personal choice and ought not to be dictated through a decree or any other means like a government order or law. Furthermore, in this context, it is extremely pertinent to highlight Justice Jackson’s Barnette opinion on making ‘patriotic ceremonies’ a ‘compulsory routine’. He emphasizes that patriotic ceremonies should be voluntary and spontaneous instead of being a compulsory routine. To do so would be underestimating the institutions of free minds.

Constitutional Patriotism – a reasonable restriction under Article 19(2)?

In the present order, the Court seems to have sacrificed ‘individual rights’ at the altar of ‘constitutional patriotism’ when it held, “It does not allow any different notion or the perception of individual rights that have individually thought of have no space. The idea is constitutionally impermissible.” While curtailing individual rights, the Court has used terms like ‘constitutional patriotism’, ‘nationalism’ and ‘patriotism’ liberally throughout the order without enunciating the variance in their import.

It has been argued that free speech and expression can be curtailed under Article 19(2) only by an existing law or a law made by the State and no other mechanism. In the absence of any law or constitutional provision to justify its actions, the Court has resorted to ‘constitutional patriotism’ as a justification to encroach upon the freedom of speech and expression of people.

‘Constitutional Patriotism’ is a concept borrowed from German jurisprudence. It denotes allegiance to constitutional principles as a means of fostering social cohesion and dwells on developing a common identity for all citizens over their individual religion, culture, tradition etc. According to this concept, constitutional principles should serve as the binding factor and nothing else. In this context, the Court’s rationale behind making it mandatory to play the national anthem as a means to ‘instil patriotism and nationalism’ is off the mark as the national anthem, if anything, is symbolic of the nation and not of the constitution.

In Bijoe Emmanuel, the Court clearly laid down that any regulation or curtailment of free speech and expression should have statutory backing and fall under the reasonable restrictions prescribed under Article 19(2). There can be no other basis for incursion into the ambit of fundamental rights. The Court’s recourse to ‘constitutional patriotism’, an extra constitutional principle, to restrict fundamental rights without any constitutional or statutory basis, sets a very dangerous precedent.

Deeming Fundamental Duties Enforceable

The Court has taken refuge of Article 51A of the Indian Constitution to direct individuals to compulsorily stand up during the national anthem as a ‘sacred obligation’. Article 51A(a) of the Constitution only casts a duty on the citizens to ‘abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem’ and does not prescribe specific standards such as being required to sing and/or stand to show respect. The Court has failed to note that though there is an inherent compulsion to comply with the fundamental duties, there is no legal sanction provided for the violation or non-performance of such duties.

Moreover, the Prevention of Insults to National Honour Act, 1971 (‘Act’) which has been referred to in the order does not mandate that a person must necessarily sing and/or stand during the national anthem. Section 3 of the Act merely criminalizes any act done intentionally to prevent the singing of, or causing disturbance during, the national anthem. By issuing the present order, the Court has effectively deemed this fundamental duty enforceable, non-compliance of which may attract contempt of Court proceedings. Furthermore, in the absence of any law prescribing punishment for not standing and/or singing the national anthem, the present order is a clear case of encroachment into the legislative domain.

As a fallout of the Supreme Court order, the Kerala police had arrested eleven people for showing disrespect to the national anthem by not standing up at an international film festival held in Thiruvananthapuram. Though the ‘accused’ were released on personal bail, they have been charged under Section 188 of the Indian Penal Code, which prescribes punishments for disobeying an order passed by a public servant.

Conclusion:

This order could spell disastrous consequences by giving teeth to self-appointed vigilantes looking to uphold the nation’s honour. There have already been several instances of such jingoism in the recent past which cause serious apprehensions regarding the enforcement and outcome of the Court order. Most recently, a paraplegic man was assaulted in a theatre in Goa for not standing up during the national anthem and a group of college students were manhandled and threatened for not standing up during the national anthem at a theatre in Chennai.

Curiously, on 2^nd December, 2016 a similar plea to make the playing of the national anthem mandatory in all Courts was rejected by the Supreme Court calling it an ‘overstretch’. Considering the interim order has been severely criticized, it will be interesting to trace the course that the matter takes on the next date of hearing which is 14^th February, 2017.

Kasturika Kaumudi is a Programme Officer with the Centre for Communication Governance at National Law University Delhi

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Image: http://www.internetlawcommentary.com/wp-content/uploads/2015/06/defame530.jpg

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11^th July and all the petitioners to file their propositions of law by 14^th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

Image: http://i.telegraph.co.uk/multimedia/archive/03343/ChrissyChambers_En_3343155k.jpg

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)

Cases in which the Supreme Court will consider the validity of Criminalization of Defamation

The Supreme Court of India is currently hearing a bunch of petitions challenging the validity of Sections 499 and 500 of IPC among others.

PICTURE: http://law.famu.edu/wp-content/uploads/2015/03/defamation.jpg

The Centre for Communication Governance at National Law University, Delhi will been tracking the case and is collecting various documents relating to it.

NOTE: There are 25 petitions which have been tagged together- the latest list of petitions can be found at: https://drive.google.com/file/d/0BycAZd9M5_7NbWhubWo5eU92OTA/view?usp=sharing. 

We are in the process of finding out the details of the lawyers and other documents regarding the same.

The details and other information regarding the cases is available below. (The table is not exhaustive as we are still collecting information)

If you have any information or copy of petitions or submissions please mail them to sarvjeet.singh@nludelhi.ac.in

Name of Case	Number	Lawyers Appearing for the petitioner	Amicus	Copy of the petition	Copy of the written submission
Subramanian Swamy v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 184/2014	Mr. Subramanian Swamy (petitioner in person) Mr. G.S. Mani (Senior Advocate) Mr. A. Lakshminarayanan Mr. M. M. Kashyap	Mr. T.R. Andharujina (Senior Advocate) Mr. K. Parasaran (Senior Advocate)
Arvind Kerjiwal v. UOI, Ministry of Law & Justice & ors.	W.P. (Crl.) No. 56/2015	Dr.   Rajeev Dhavan (Senior Advocate) Ms.   Vrinda Bhandari Mr.   Chirag M. Shroff Ms.   Swati Vaibhav		Available here
Arvind Kerjiwal v. UOI & ors.	W.P. (Crl.) No. 62/2015	Mr.   Arvind P. Datar (Senior Advocate) Mr.   Guru Krishna Kumar (Senior Advocate) Mr.   Trideep Pais Mr.   Gautam
Rahul Gandhi v. UOI & ors.	W.P. (Crl.) No. 67/2015	Mr.   P.P. Rao (Senior Advocate) Mr.   Harin P. Raval (Senior Advocate) Mr.   R.S. Cheema (Senior Advocate) Ms.   Mahalakshmi Pavani (Senior Advocate) Mr.   K.C. Mittal Mr.   G. Balaji Ms.   Tarannum Cheema Mr. Nipun Saxena Mr.   Santosh Krishnan
Foundation for Media Professionals v. UOI	W.P. (Crl.) No. 106/2015	Mr. Anup Bhambhani (Senior Advocate) Mr.Dushyant Arora Ms. Mudrika Bansal Mr. Apar Gupta		Available here

Cases in which India’s Supreme Court will define contours of free speech online

Author: Nikhil Kanekal

India’s apex court is slated to decide key cases which, one way or another, will have a significant bearing on online free speech and regulation. The cases are in initial stages of hearing and will gain momentum once the court decides to hear them substantially, which, going by its procedure, will likely take some months.

Kamlesh Vaswani v. Union of India

Kamlesh Vaswani’s petition against pornography wants the court to direct the government to declare key sections of the IT Act ultra vires the constitution. He has asked for a national action plan against pornography and a separate law that will exhaustively curb ‘the growing problem of pornography’. He wants the government to insert new sections into the IT Act which will be more stringent and carry heavy penalties for creating, transmitting, storing and viewing pornography. He also asks that these be made non-bailable and cognizable offences.

The crux of the petition concerns the enforcement of an effective bar on access to pornographic content in India. This petition will need to be considered both from the perspective of the jurisprudence on obscenity and free speech, and from the perspective of how far it is possible to completely remove a category of speech/content from the Internet.  There is a range of complications associated with trying to ban content online due to the structure of the Internet. The state and its instruments are not yet sophisticated enough to filter out the narrow range of content that is legitimately banned without including material outside the ambit of illegal content. Although most stakeholders agree that child pornography must be removed from the Internet – it continues to be difficult to enforce universally, owing to the nature of the Internet.

The Rajya Sabha committee has also issued a public call for inputs on this issue.

Shreya Singhal v. Union of India

Shreya Singhal’s case was admittedly shortly after the much publicised arrest of Shaheen Dhada in Mumbai. The Supreme Court has been asked to strike down Section 66A of the Information Technology Act, 2000. This law has been adopted from a similar provision in the United Kingdom’s Communication Act, 2003. However, the Queen’s Bench Division of the High Court has read down this provision in 2012, making the UK more tolerant of free speech online.  Besides asking for Section 66A to be declared ultra vires the constitution, Singhal has requested the court to issue guidelines so that offences concerned with free speech and expression are treated as non-cognizable under criminal law, meaning that police powers are brought under safeguards on areas such as making arrests without a warrant as well as the power to investigate.

Mouthshut.com v. Union of India

The Mouthshut.com petition challenges the Information Technology (Intermediaries Guidelines) Rules, 2011 which effectively creates a notice and take down regime for third party/ user content that intermediaries host. Originally the IT Act was meant to create a safe harbour for intermediaries, to shield them from liability for third party content. This safe harbour is subject to the intermediaries meeting a ‘due diligence’ standard – the rules which were meant to explain what this standard meant, have instead created a whole liability system surrounding contexts in which intermediaries are given notice of objectionable content and do not take it down within the specified time (An academic paper on this aspect, authored by Pritika Rai Advani, is to be published soon). Although intermediaries are permitted in theory to judge content as unobjectionable, the fear of litigation has led to over compliance – this includes taking down legitimate content to avoid expensive and time-consuming law suits. The petition argues that as delegated legislation, the rules are not only unconstitutional but also  go well beyond the scope permitted by the IT Act.

Dilipkumar Tulsidas Shah vs. Union of India

Dilipkumar’s petition asks the court to pass guidelines to ensure that police officials have a standard operating procedure to deal with complaints and reports related to Section 66A and other offences listed under the Information Technology Act. Several police actions under the IT Act thus far have been inconsistent and more abuses of power. A bench comprising justices H. L. Gokhale and Jasti Chelameshwar has decided to hear the Mouthshut.com case along with Shreya Singhal’s petition and Dilipkumar Tulsidas Shah’s petition.

Rajeev Chandrashekar v. Union of India

Chandrashekar wants the court to declare section 66A of the IT Act and sections 3(2), 3(3), 3(4) and 3(7) of the IT (Intermediaries Guidelines) Rules, 2011 ultra vires the constitution. This petition is also attached to Shreya Singhal’s case.

Note: Common Cause and People’s Union for Civil Liberties (PUCL) also plan to file petitions that challenge parts of the IT Act and IT rules, and these petitions are likely to be tagged with Shreya Singhal’s case. We will provide an update about these petitions shortly. Additionally, there are some cases pending before various High Courts concerning provisions of the IT Act and Rules.