Censorship by other means

Amended IT Rules violate rights and media freedom, they must be withdrawn

The amendments to Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, notified by the government last week, will have a chilling effect on freedom of expression and media freedom.

The notification provides for identification of fake or false or misleading online content related to the government by a fact-checking unit appointed by it. Social media companies or net service providers will have to take down such content on notification by the government or lose their “safe harbour” protections.

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The protections allow them to avoid liabilities for what third parties post on their websites. The government’s move is wrong and goes against accepted principles of natural justice, existing rules and past judgements of courts, and violates constitutional rights. The amendments are a violation of the procedure prescribed in the IT Act, 2000, and the guidelines prescribed by the Shreya Singhal vs Union of India, 2015, on the takedown of online content.

With the notification the government has arrogated to itself the power to decide what is right and wrong and assumed the role of a super editor. It will be the judge, jury and executioner on issues that concern it without allowing the right of appeal for the aggrieved party at any forum, including the courts. This is unfair and unjust and amounts to assumption of absolute powers in an area involving fundamental rights. The government has said that online intermediaries have the responsibility to exercise due diligence. While this is true, the government has no right to exercise undue diligence over the media. There is no clear definition of fake news, false news or misleading news. Without this, and without a laid down procedure to arrive at decisions and without the right to appeal, the government’s decisions will tend to be arbitrary and lack transparency. The power is bound to be misused.

The Editors Guild of India has said that the government’s move is akin to censorship and cited that there was no consultation on the matter. The government had a few weeks ago put out a set of amendments which had given similar sweeping powers to the Press Information Bureau (PIB). While the PIB does not figure in the present scheme, the effect is the same. Media organisations use social media platforms for dissemination of news and so the curbs on online content of these platforms will hit the media as well. It will be censorship done by other means, without calling it by that name. There are a number of recent judgements from courts underlining the importance of media freedom, but the notification disregards them. The government’s assurance that its powers will not be misused cannot be trusted. The notification should be withdrawn.