28 May 2021: UPSC Exam Comprehensive News Analysis

E. Editorials

Category: POLITY AND GOVERNANCE

1. Nine-pin bowling aimed at free speech, privacy

The editorial talks about concerns relating to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.

Background:

• In February 2021, the government notified guidelines: The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021.

This issue has been covered in the UPSC Comprehensive News Analysis of 28th Feb 2021.

Positive aspects of the guidelines:

The Rules mandate duties such as:

• Removal of non-consensual intimate pictures within 24 hours.
• Publication of compliance reports to increase transparency.
• Setting up of a dispute resolution mechanism for content removal.
• Adding a label to information for users to know whether the content is advertised, owned, sponsored or exclusively controlled.

Concerns:

While there are positive aspects about the guidelines, there are some glaring ambiguities that are not in line with the prior precedents such as the Supreme Court (SC) judgement in K.S. Puttaswamy case.

Ambiguities and Privacy Issues:

• If the social media platforms do not comply with the rules, they would be deprived of their safe harbour immunity.
  • Generally, these intermediaries/social media platforms do not have editorial control over the content.
  • Therefore, countries are encouraged to enact safe harbour protections which offer immunity to intermediaries from criminal liability.
    • In India, the safe harbour provisions have been defined under Section 79 of the IT Act.
  • According to the new rules, in case due diligence is not followed by the intermediary, the safe harbour provisions would not apply to them.
  • An intermediary is supposed to take down content within 36 hours upon receiving orders from the Government.
    • Owing to a strict timeline, the intermediary is deprived of fair recourse in the event that it disagrees with the Government’s order.
  • In addition, the Government is placed as the ultimate adjudicator of objectionable speech online. This might adversely impact free speech.
  • It is argued that democracy stands undermined in direct proportion to every attack made on the citizen’s right to have a private conversation, to engage in a transaction, to dissent, to have an opinion and to articulate the same without any fear of being imprisoned.
  • The rules undermine the right to privacy by imposing a traceability requirement.

Gagging a right:

• In Life Insurance Corpn. Of India vs Prof. Manubhai D. Shah (1992) case, the SC had elevated ‘the freedom to circulate one’s views as the lifeline of any democratic institution’.
  • It said ‘any attempt to stifle, suffocate or gag this right would sound a death knell to democracy’ and would ‘help usher in autocracy or dictatorship’.

Information Technology ultra vires to the IT Act:

• The rules were framed by the Ministry of Electronics and Information Technology (MeiTY).
• The Second Schedule of the Business Rules, 1961 does not empower MeiTY to frame regulations for ‘digital media.’
  • This power belongs to the Ministry of Information and Broadcasting.
• In this case, although MeiTY has said that these rules shall be administered by the Ministry of Information and Broadcasting, this action violates the legal principle of ‘colourable legislation’ where the legislature cannot do something indirectly if it is not possible to do so directly.
• The Information Technology Act, 2000, does not regulate digital media. Therefore, the new IT Rules which claim to be a piece of subordinate legislation of the IT Act, are beyond the rule-making power conferred upon them by the IT Act.
• This makes the Rules ultra vires to the Act.

Financial Burden:

• Rules create additional operational costs for intermediaries by requiring them to have Indian resident nodal officers, compliance officers and grievance officers.
• Intermediaries are also required to have offices located in India.
  • This makes profit-making a far-fetched goal for multinational corporations and start-up intermediary enterprises.

Way Forward:

• Defining what constitutes fake news within the ambit of the rules must be the first step to eliminating the fake news rather than hurriedly taking down whatever an arbitrary, biased authority may deem as fake news.
• Regulations in the absence of data protection would make the data from conversations vulnerable to attack from ill-intentioned third parties. It would pose threats of invasion and deprivation from a safe space.
• There is an urgent need to critically scrutinise the recent barriers being imposed via these Rules against the right to free speech and expression.

2. Incorporating limits

The article talks about the proposed hate speech provisions under the Indian Penal Code (IPC).

Free Speech:

• Besides not containing abuse, defamation or incitement to violence, responsible speech is increasingly seen as an expression that tends not to discriminate against or incite hatred towards groups based on race, gender, caste, religious belief, sexual orientation, nationality or immigration status.
• The world sees a free speech doctrine as the one that discourages the targeting of any vulnerable section.
• In modern democracies, the right to free speech is restricted. While speech is free, the freedom comes with responsibility. 
• The term ‘hate speech’ and calls for framing laws that seek to punish ‘hate speech’ arise from the basis on which speech is restricted in modern democracies.

Including ‘hate speech’ in the Indian Penal Code:

• In 2020, the Home Minister called for a revamp of the criminal justice system and sought views of the states on changes that may be required in four key criminal justice laws—the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), Arms Act and the Narcotics Drugs and Psychotropic Substances Act (NDPS).
• Consequently, there were proposals to incorporate provisions against hate speech in the penal law. This move has been largely welcomed.
• A committee has been appointed by the Home Ministry for recommending changes in criminal law.
  • This committee is seeking to formulate new provisions that will make hate speech a separate offence.
• While the term ‘hate speech’ may not be used, the panel is examining recommendations made by the Law Commission and the Expert Committee headed by T.K. Viswanathan (which dealt with cybercrimes especially online hate speech), on adding Sections 153C and 505A to the IPC.
  • The proposed Section 153C would target speech that gravely threatens any person or group with the intention to cause fear or alarm, or incite violence towards them, and prescribe a sentence of two years in prison and a fine.
  • Section 505A proposes to punish speech or writing that causes fear or alarm among a group, or provokes violence against it, on grounds of race, religion, gender, sexual orientation, place of birth or disability.
• But, the Committee for Reforms in Criminal Laws has attracted criticisms questioning its ability to gather a wide range of opinion during the pandemic and for not being inclusive.

Way Forward:

• A comprehensive revamping of the criminal justice system can provide measures to check hate speech.
• In the context of the hate speech provisions, the committees’ efforts must be directed towards narrowly defining the sections it proposes to formulate and avoid using vague and overbroad terms.
  • Example: Section 66A of the Information Technology Act was struck down by the Supreme Court because it failed to define some terms that sought to criminalise offensive and annoying messages.
• New sections (if any) should be clear about what is sought to be punished as incitement to violence or advocacy of hatred, posing an imminent threat to public order or a targeted group. Only then will it be a valid curb on free speech.

Category: HEALTH

1. Addressing vaccine hesitancy

This topic has been covered in UPSC Exam Comprehensive News Analysis. March 17th, 2021 CNA.