IT Rules 2021 for checks and balances, no chilling effect on freedom of speech: Centre to Delhi High Court

The Central government has told the Delhi High Court that the new Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021) does not in any manner create a chilling effect on the freedom of speech and expression (Uday Bedi vs. Union of India)..The IT Rules 2021 provide checks and balances on social media companies by setting timelines for removal of unlawful content, and providing for responsibilities, an affidavit filed by the Centre's Ministry of Electronics and Information Technology (MEITY) said. .The affidavit argued that according to the Rules, content can only be removed through the orders of a court of competent jurisdiction, the government or its agencies. “The court and the government or its agency will always pass an order and notification after following the principles of natural justice. The above mentioned provision acts as checks and balances on the actions of the intermediary. Hence the allegations against rule 4(2) are not maintainable,” it has said.The affidavit was filed in response to a petition by lawyer Uday Bedi challenging the constitutionality of the new IT Rules. Bedi had challenged the Rules 3 and 4 of the IT Rules arguing that they provide sweeping powers to social media intermediaries to remove or block access to information based on the complaints of private persons.The petition had raised concerns that the power to identify the first originator of an information violates their right to privacy as it would involve decryption of all the information stored, hosted, published or transmitted through that platform.The government, however, has responded that this can be done only through a judicial order and that fake news has the potential to rupture a community's social fabric, which can lead to serious public order problems, and that even the Supreme Court has held that the right to privacy is not an absolute right.“It has also been noticed that the fake messages/CSAM has the potential to rupture the community fabric in no time and often lead to serious public order problems. With the new amendment, the Central Government is seeking the details of the original perpetrators behind publication/transmission of fake news/CSAM,” it said.“The Supreme Court in the 2018, Puttaswamy judgement has also rightly observed that the right to privacy must be considered in relation to its function in society and be balanced against other fundamental rights. In a catena of judgments, the Hon'ble Supreme Court has also held that the right to privacy is not an absolute right, and it can be regulated within the realm of permissible grounds. Hence, the above rule is completely rational and enacted to serve a larger purpose,” the affidavit further stated..It also argued that the time limit of 36 hours to remove illegal content has been formulated to prevent spreading of content on other platforms, defamation and the commission of any cognisable offence.“Unlawful content spreads faster from one platform to another. Hence the intermediaries are required to swiftly ensure compliance action (removal of content) to prevent further loss of damage to individuals or the State. If immediate action is not taken then unlawful content may percolate into other platforms or assume new forms (modified content) and it is difficult to take down such unlawful content once it reaches many platforms in multipIe forms of content,” it said.The government has also argued that most of the social media companies are foreign entities, and it is imperative that these platforms follow the law of the land. It has argued that criteria of 50 lakh for significant social media intermediaries (SSMIs) has been formulated based on global practices and the classification of “social media intermediary” and “significant social media intermediary” for the purpose of regulatory compliance does not make the government exercise an arbitrary and authoritarian one..A petition by WhatsApp and Facebook is also pending before the Delhi High Court, challenging the requirement under Rule 4(2) of the IT Rules 2021 to trace first originators.