Empower ordinary users. Enhance their digital safety. Make intermediaries accountable.
It’s with these intents that the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 were introduced, the central government has said in a recent fresh affidavit before the Delhi High Court.
The rules provide for checks and balances on social media companies by setting timelines for removal of unlawful content, the affidavit argues. And, in no manner do the rules impede on the freedom of speech and expression, the government said while defending the rules notified in February this year.
The central government’s arguments are in response to a petition by lawyer Uday Bedi challenging the constitutionality of the IT Rules, which cover social media intermediaries, online news publishers and OTT platforms.
Bedi has challenged Rules 3 and 4. These two rules lay down due diligence requirements and grievance redressal mechanism to be provided by intermediaries. But, Bedi argues, they provide sweeping powers to social media intermediaries to remove or block access to information based on the complaints of private persons.
Rules Constitutionally Valid
One of the main challenges that Bedi has raised was that the IT Rules are contrary to fundamental rights such as ‘right to equality’, ‘freedom of speech and expression’ and ‘privacy’ as enshrined under Articles 14, 19 and 21 of the Constitution of India.
This has been vehemently opposed by the central government in its affidavit:
- New rules are neither discriminatory nor arbitrary. Regulated parties should know what is required of them so they may act accordingly.
- Content removal can only be via orders of courts, the government or its agencies. This is so that no regulator or enforcement agency acts whimsically.
- Privacy, under Article 19, is not an absolute fundamental right. It can be intruded upon, especially when an important countervailing interest is superior to it.
- Intermediaries are required to respond to user grievances within 24 hours to prevent spreading of content on other platforms, defamation and commission of any cognisable offence.
- Classification of social media intermediaries and significant social media intermediaries basis 50 lakh registered users is not arbitrary, and is based on global practices. Such classification by itself does not give the government discretion to enforce any arbitrary and authoritarian decisions.
In total, 17 writ petitions have been filed across high courts challenging the IT Rules, 2021. They largely contend that the law is an overreach by subordinate legislation, and is unconstitutional. The Rules include a Code of Ethics, applicable to digital news, that is quite wide and vague, says the batch of pleas, while adding that the oversight mechanism to ensure compliance with the code is quite draconian. Bloomberg Quint