Cyber and media law experts have expressed concern at the recent order issued by the Ministry of Information and Broadcasting on regulating digital media – on the grounds that it may be an attempt to control what content is published.
Pointing out that the 10-member panel formed to frame guidelines for websites lacks both a representative from digital media – the very object of the government’s ‘regulatory’ exercise – and a legal expert, lawyers said any provision to regulate the medium must be within the boundaries of freedom of speech as laid out under Article 19(1) of the constitution.
Else, they warned, the Supreme Court would likely strike down its provisions, just as it had done in 2015, when it found section 66(A) of the Information Technology Act 2000 to be “unconstitutional”. This section was widely misused by the police in various states to arrest innocent persons for posting critical comments on social and political issues on social networking sites.
Advocate and public policy professional Apar Gupta said, “On several levels, it seems that the ministry’s order is nothing but just a disguised attempt to bring in a ‘pick and choose’ policy” which may be used against the media.
Noting that “there is no question that this government has a very poor record on media freedom,” he said that while the BJP had opposed section 66A when it was in the opposition, it went back on its stand and defended the provision in the Supreme Court. It was the courts that finally struck it down.”
Internet shutdowns increased under Modi rule
Similarly, Gupta said, the government had passed wide-ranging orders for blocking websites. “Internet shutdowns have increased tremendously in the last four years. In fact, at the end of 2016, there was a report by Brookings Institution which had pegged India as the country with the highest number of internet shutdowns in the world, even ahead of Iraq and Libya.”
So he said it was not only an issue of media freedom but also of “the government wanting to control all forms of media itself”.
Gupta said it would be incorrect to say that the digital media space is “completely unregulated”, because not only the IT Act, even provisions of the Indian Penal Code as well as other substantive content law offences apply to online media. “Offences of obscenity, defamation and hate speech apply to anything that is shared online because these provisions are agnostic to the medium in which the content is actually shared.”
‘Principal claim on constitution of committee falls apart’
Gupta also questioned the reasons for regulation put forth by the ministry, which had noted that television channels are required to adhere to the programme and advertising codes mentioned in the Cable Television Networks (Regulation) Act, 1995 – and “there exists a well-settled mechanism for dealing with any violations thereof” – and that the Press Council of India has its own norms to regulate the print media. In contrast, said the ministry, “no norms or guidelines” existed for online media websites and news portals.
“Where online media does not have a counterpart to traditional media is with respect to a regulatory body such as the Press Council of India. But it is incorrect to say that TV broadcasting has a regulatory body in place, because the regulations under the 1995 Act are enforced by the inter-ministerial committee headed by the I&B ministry. The News Broadcasters Association is only a private self regulatory body which does not have any kind of statutory backing,” said Gupta. Even when it came to PCI, he said, “it remains a toothless body because any order that it passes is not enforceable as a decree in a court. There are further problems with the PCI in terms of its constitution, staffing and financing which over a period of time have made it ineffective.”
“So the principal claim which is made for the constitution of this committee – which is that internet content is exceptional to the prevailing regulatory mechanism – falls apart on closer examination,” insisted Gupta.
Therefore, he said, “My argument is that when these bodies are not working properly, they apply things subjectively. I am not sure how [any proposed law or rule], even if it is framed, will identify its applicability. You do not have a system of licensing for digital media. So at the end of the day the manner of action would be arbitrary and unenforceable.”
This, he said, would be “incredibly dangerous given that the news media is playing a major role today in actual ground reporting as well as curbing misinformation and fake news through established processes.
‘New regulations may go against websites acting independently’
Senior constitutional, commercial and media lawyer in the Supreme Court Karuna Nundy said, “We should keep in mind that the normal criminal law and IT act in any case apply online as well,” In such a scenario, she expressed the apprehension that “these regulations could be used disproportionately against websites like the The Wire, Scroll.in and Alt News, that are acting fairly independently, and hold a mirror up to power when necessary”.
“There is a regulatory scheme which already exists under the rules of the Information Technology Act. Under the website blocking rules of the IT Act, the government is meant to provide notice with reasons for websites that they have blocked. So we had a situation in 2015 where about 800 websites were blocked, without reason. Also there are intermediary liability rules by which the government itself can ask for a particular website to take down certain content,” she pointed out.
Referring to how several attempts have been made to curb media freedom in the recent past, Nundy said there was recently a proposal by the ministry that accredited journalists could be radio tagged and tracked. Then it issued and withdrew guidelines to punish journalists with suspension and even cancellation of their accreditation on allegations that they promoted ‘fake news’. In addition, they have several very government-friendly journalists on the panel for deciding who can be an accredited journalist.
Need to have online media/news portal representative on panel
Nundy also said the committee, proposed to be constituted under the order does not have a representative who works in online media or with digital news portals, nor a legal expert to ensure that everything that is contemplated by way of ‘regulations’ is within the bounds of Article 19(2) of the constitution that provides for only “reasonable restrictions” on the exercise of free speech.
“As they are constituting this committee, various representatives of online media of various political hues and online media legal experts should be involved. Given this government’s history on suppressing speech in the name of regulation, the setting up of a committee like this is problematic. But we are saying that if you have to set up a panel, then that committee should have representatives of all concerned groups – you cannot have it full of government representatives, and bodies controlled by the government and ruling party supporters alone.”
As for online content being uploaded by bodies incorporated outside India, Nundy said the government can still use website blocking and take down foreign websites. They are not saying Indian websites, they are saying online media – so that covers all.
Cyber law expert Pavan Duggal said, “All output of digital media comprise electronic records which are covered under the Information Technology Act. So all offences for such content are covered under the IT Act.” As such, he said, while the IT Act is not a digital media law in its own character, it is basically regulating digital content.
Going beyond IT Act
With regard to the ministry order, he said the government wants to potentially look at regulating digital media and is constituting this committee because a lot of issues like fake news and other things are not directly covered under the IT Act. “Also, all the digital media players become intermediaries and service providers under the IT Act which mandates them to exercise due diligence. But the parameters for due diligence for social media entities are not defined under the IT Act. Some broad parameters are defined, so probably the ministry wants to come up with some dedicated provisions for regulating digital media.”
As for fake news, Duggal said that it is now outside the purview of the IT Act. “There are no direct provisions for it under the Act, but fake news can still be covered under the Indian Penal Code. Earlier there used to be section 66A which could also be used for countering fake news but that was struck down by the Supreme Court in March 2015.”
The new regulatory framework for digital media was in keeping with the trend being witnessed in other countries, he said, adding that the latest to join the list was Malaysia which recently passed and implemented a law that sends people to jail for up to six years for publishing fake news. “But the move was criticised because it tantamount to a violation of people’s fundamental right to freedom of speech and expression.”
New provisions to cover all digital media
As for the law on digital media covering content being provided by websites incorporated outside the country, Duggal said the law as laid down by section 1 and section 75 of the IT Act specifies that it would be applicable to any person of any nationality anywhere in the world, as long as the content is available on computers, computer systems and networks physically located in India. “Even if the entities are not in India but their content can be viewed on computers based in India, they become subject to the IT Act.”
However, Duggal said that the ministry and government must take into consideration the established principles of constitutional protection pertaining to freedom of speech and expression under Article 19(1) of the constitution. Of course, this is not an absolute right and is subject to certain reasonable restrictions that are allowed under Article 19(2) of the constitution and need to be enforced in the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.
“The government can go forward with reasonable restrictions, but the golden balance between freedom of speech and reasonable restrictions is something that the government has to achieve.”
‘No need for new laws, only for clarifying existing ones’
Cyber law expert Karnika Seth said that while she does not see a clear cut need for new laws, she does believe that there is a case for clarifying existing laws.
“As far as liability of intermediaries is concerned, section 79 of the IT Act is also there and if you see the real intent for this section it is an actual notice that if there is some objectionable material on a site then they ought to take action within 36 hours of the offence being pointed out. This applies to all sites which claim that they are not always monitoring the content which is being posted by third parties,” she said.
Seth said there was confusion in government on the extent of its control over social media. “When I filed RTI applications with a number of departments in 14-15 ministries while working for a client who was setting up a social media platform, they all responded that they do not control social media and that certain laws may not apply as much to the online medium as they do to the offline medium.”
But, she said, be it trademark law or other laws, people are liable for infringement as much online as they are offline.
As for laws governing digital media, she said, there is scope for misuse and so one should be very clear that “action against online platforms should not be aggravated just because the damage is more in case of fake news or other messages circulated in this fashion. The control should be reasonable and justified, it should not exceed the reasonable boundaries, which again is a question of law.”
Recalling how she had attended a consultation on controlling social media and the liability of intermediaries when Kapil Sibal was law minister, Seth said that while some policy was being drafted the process had got stalled in the wake of huge protests. “Now similar attempts are being made by the I&B ministry to rein in the digital media.”
More experts, equal laws
As for the committee which is being constituted, she said, it should have more experts. “They should also be careful about the regulations which would be proposed since we are talking about converging the digital media but at the same time are maintaining its segregation from print and electronic media.”
Noting that all media are now merging with the advent of mobile phones, Seth said there was a lot of confusion on how to approach the whole issue. “So while the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) has also got charge of the cyber appellate tribunal and so the courts are getting merged, the rules have not been merged, and the departments too remain separate. So I&B and telecom are working separately. They are not sure if they want to segregate or merge these players.”
Calling for a clear strategy, she said, “If you merge the tribunals, you should also merge the departments. Why should there be different departments for online media and print media? Why should the I&B ministry and telecom ministry make different laws for them? Media is media and the same laws should apply.”