This Article has been written by Ms. Sejal Dhakad, 1st year BBA LLB Student at Indian Institute of Management Rohtak.
Introduction
Under the Information Technology Act, 2000 (IT Act), the Government of India introduced 2021, Regulations for Information Technology (Intermediary Guidelines and Digital Media Ethics Code) (Rules) in February 2021 to govern intermediaries, publishers, and individual content creators of news and current affairs content as well as online curated content.
India is one of those nations worldwide where, at least up until now, you may speak your mind without worrying about being shot dead for it under Article 19 (1) (a). Even while Indian’s lives are significantly better than those of their counterparts in other countries, this reality is no longer particularly calming or captivating for Indians. This observation is being made in reference to the arbitrary application of the country’s so-called cyber laws, particularly Section 66A of the Information Technology Act, 2000, and the barriers put in the way of exercising the freedom of speech and of the press in relation to social media.
Several petitions against the Rules have been filed since they were introduced and are currently pending before the High Courts of Delhi, Kerala, Karnataka, etc. Two petitions challenging the Rules have recently been submitted to the Bombay High Court on the grounds that they violate the IT Act and the requirements of Articles 14, 19(1)(a), and 19(1)(g) of the Indian Constitution. The digital news website, the Leaflet, which has published articles, opinion pieces, and reports relevant to many social and political concerns, filed one petition, Agij Promotion of Nineteenonea Media Private Limited and Ors. Vs. Union of India and Anr.1.
In accordance with the Code of Ethics, publishers of online curated content are required to: (a) categorise content based on its nature and type; (b) provide and display the relevant rating for such categories based on the relevant content; (c) implement access control mechanisms; (d) make reasonable efforts to make the online curated content more accessible to people with disabilities; and (e) make sure the online curated content is not illegal.
A three-tier grievance redressal mechanism, consisting of self-regulation by publishers, self-regulation by self-regulating bodies that may be established by the self-regulating bodies of the publishers, and an oversight mechanism by the government, is required by Rule 9(3) of the Rules for publishers operating in the territory of India.
Publishers of news and current affairs content as well as online curators of content, must abide by the Code of Ethics outlined in Rule 9 (1) of the Rules if they have a physical presence in India. Foreign publishers who make their content systematically available in India are likewise subject to this requirement. Any structured or organised commercial action that incorporates a component of planning, procedure, continuity, or persistence is referred to as systematic.
Content Regulation
Global connectivity has significantly improved through the use of the Internet, which also boosted access to information and platforms where opinions may be freely shared, and content can be published. Yet, this connectivity also made it simpler to obtain and disseminate dangerous and unlawful content. Internet behaviours are fueling violence, swaying elections, disseminating divisive beliefs, and endangering the health and lives of individuals. Thus, quick and forceful reactions are required to manage the overall number of online messages.
By creating sophisticated mechanisms to monitor content, large internet platforms have worked to prevent online abuse. They’ve created technology that automatically detects and deletes information that doesn’t comply with their rules. In addition to these techniques, there are trained internal teams and crowd workers who analyse flagged content when a more thorough analysis of a post is required to reach a conclusion. In an effort to counter misinformation, they have also formed partnerships with independent fact-checking organisations. In order to hear some of the user’s challenges to its moderation judgements, Facebook even established an adjudicative body.
On the opposite end of the spectrum, however, there is a wealth of scholarship and popular opinion that argues that private digital platforms are excessively limiting speech by eliminating information based on illogical and ambiguous criteria. Online intermediaries control a sizable portion of communications while keeping the ability to mediate these conversations, which increases the risk of censorship just as there is a necessary need for moderation. Companies that govern what can be said or published online are being questioned more and more about their decisions and how responsible they should be for what is said as societies depend more and more on the Internet.
The central conflict and conundrum of online content moderation is the tension between the right to free speech and the reduction of online harm. There is sadly no perfect solution because expectations and opinions about free expression vary greatly among internet users, tech company executives, cultures, and societies as a whole.
Internet services have become essential for life, including social connection, education, and job, as we remain physically separated due to the epidemic, increasing the volume of communications and time spent online. Online hazards have sadly increased along with the rise in time spent online. Legislators and policymakers throughout the world who want to have a role in how choices are made and pursue legislation over online speech will continue to put pressure on for better content moderation, and the need for more strict regulation will become more important.
So far, lawmakers and decision-makers must take into account the implications of any regulatory action on content moderation on competition, as entry and growth hurdles can be imposed in market structures that are already extremely concentrated. A collective action problem confronts policymakers in every nation, whereby additional liability imposed in each jurisdiction may improve the market position of large incumbents operating globally by increasing the barriers of entry for new competitors. In order to strike the correct balance and make use of greater state regulation and market forces to effectively combat unlawful and harmful information online, legislators and policymakers can collaborate with competition authorities and experts. Making new entrants exempt from liability based on their size would be a step in the right direction.
Conclusion
The Bombay High Court acknowledged the value of freedom of expression and ruled that a democracy could only flourish in India if its citizens upheld the preambular pledge they made when ratifying the Constitution. One of these guarantees is intellectual freedom. Expressions come into being by utilising this freedom. If, even at the interim stage, at least a portion of Rule 9 of the Rules is not interdicted, it will have a negative impact. Currently, there is a real potential of living in continual fear of being investigated for violating the Code of Ethics. If forced to live in the current era of internet content restriction with the Code of Ethics hanging over their heads as the Sword of Damocles, people would feel stifled in exercising their right to freedom of speech and expression. This system would be blatantly at odds with the values and ethos of the Constitution. Given the foregoing, the Bombay High Court ruled that the Central Government lacks the authority under the IT Act, which gave rise to the Rules, to enact a provision similar to Rule 9. The Government of India has therefore been given time to file its rebuttal affidavits and rejoinder after the Bombay High Court temporarily halted Rule 9(1) and Rule 9(3).
References
- https://indiankanoon.org/doc/87652649/
- https://www.obhanandassociates.com/blog/freedom-of-speech-and-expression-vs-content-regulation-the-battle-continues/?utm_source=mondaq&utm_medium=syndication&utm_term=Technology&utm_content=articleoriginal&utm_campaign=article
- https://orgs.law.harvard.edu/antitrust/2020/12/03/online-content-regulation-and-competition-policy/#_ftn8
- https://legaldesire.com/ott-censorship-vs-right-to-freedom-of-speech-and-expression/
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