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New IT Rules, 2023, unconstitutional?

At the stroke of midnight, when the city was on a short nap to welcome the fresh sun, She, along with a few crew members of a YouTube Channel, appeared from nowhere in front of a prominent hospital, as in a scene from a typical don-based Bollywood movie. Within seconds, the squad made a hue and cry in front of the said institution, where the lady, who resembles the lead of the team, started playing ‘victim’ by making a false narrative about the atrocities of the hospital management and, as preplanned, the crew members began filming her, with purely one-sided commentaries, belittling and shaming the management of the hospital! None of the so-called crew members bothered to verify the credentials of the false claims made by the said ‘victim’ and failed to verify the documentary evidence available with the management to disprove the allegations made by her. Within hours, the video content went viral on many social media platforms, with millions of viewership under its credit. Without verifying the genuineness of the said ‘news item,’ many had shared the same on their social media walls and celebrated it. As per Rule 3 of the IT Rules, 2021, a user should not upload any defamatory content to Intermediary platforms such as Facebook, YouTube etc., failing which, the same shall be treated as a failure on the part of the social media intermediary(such as Facebook, Youtube) to exercise due diligence. Though the hospital authorities, in the case mentioned above, had promptly approached the social media platforms under Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2021, the said news continued to be circulated due to the lack of direction from a competent court. By the time the order is obtained, the damage should have been done and dusted! So it is clear that, though the IT Rules 2021 had a tooth to bite, those were not fixed properly on its jaws. What is the remedy available to the aggrieved in this case?

If you analyse the above situation, it can be seen that the lady who created the issue in front of the hospital and the youtube channel which published the said matter had exercised their right to freedom of speech and expression given under ‘Article 19(1)(a). However, the said right had curtailed the right of the hospital prescribed under Article 19 ( 1) (g) of the Constitution of India, which provides for the right to practice any profession or to carry on any occupation, trade or business to all citizens. Article 19(2) provides that the right to freedom of speech and expression may be restricted only on the grounds of national security, public order, decency or morality, contempt of court, defamation, or incitement to an offence. That means the right to speak or express has to meet specific criteria to qualify as ‘constitutional’; otherwise, the same can be curtailed.

The above incident is purely defamatory, and hence the maker of the said news does not have the protection of ‘Freedom of Speech’ as Article 19(2) provides that the said right is not available if the speech results in defamation.

As per the IT Rules, 2021, the intermediary shall make reasonable efforts not to host, display, upload, modify, publish, transmit, store, update or share any information that is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, including bodily privacy, insulting or harassing based on gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force. As per the above, an intermediary can take down any online content which is 'defamatory' as unconstitutional based on a complaint filed by an aggrieved. Furthermore, permitting the user to upload defamatory content can be considered a diligence failure envisioned under Section 79 of the IT Act.

As per Rule 3(1)(d) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2021, an intermediary shall not host, store or publish any unlawful information which is prohibited under any law for the time being in force in relation to the interest of the sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; decency or morality; in relation to contempt of court; defamation upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the Appropriate Government or its agency under clause (b) of sub-section (3) of section 79 of the Act.

However, in the new proposed amendment to the IT Rules (IT Rules, 2023), the word ‘defamatory’ is conspicuously missing from the restrictive list. Hence, any user can upload such defamatory statements on social media platforms. To remove the defamatory statements, the aggrieved persons must approach the Court of Competent Jurisdiction and obtain an order. So practically, anyone can now publish a defamatory statement without fear of removal of it by the intermediary. By the time the defamation is proved, and the order of the Court is obtained, all the intended damage may have been done. By permitting the users to upload the ‘defamatory’ contents to the intermediary platforms, the amended rules underplay the restrictions under Article 19(2) of the Constitution.

As per the proposed new Rules, the intermediary shall have to make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact-checking. Article 19(2) does not restrict the freedom of speech and expression which are false or fake. However, the Central Government can directly or through its agencies can now instruct an intermediary to remove any content from their platform by citing it as ‘False or Fake’. If the intermediary denies or rejects the said direction, the Central Government can term it as the failure of the intermediary to exercise proper due diligence and take necessary measures against it under section 79 of the IT Act.

By removing the term ‘defamatory’ from the restrictive list and inserting ‘authority to PIB to identify the False and Fake content’, Rule 3 violates Article 19 of the Constitution of India. Due to removing the term ‘defamatory’ from the restricted type of information that can be uploaded, the Rules indirectly permit unrestricted freedom of speech, which violates Article 19(2). On the other hand, by allowing the agencies of the Central Government to classify False/Fake news, it restricts the freedom of speech to the press.

Bijoy P Pulipra

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