[IT Rules 2021] No chilling effect, ensures adequate regulation of digital, intermediary platforms: Central govt tells Madras High Court

The Union of India represented by its Ministry of Electronics and Information Technology (MEITY) and the Ministry of Information and Broadcasting (MIB) have filed two counter-affidavits before the Madras High Court defending the validity of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules, 2021)..After being informed of the development, the Bench of Chief Justice Sanjib Banerjee and Justice PD Audikesavalu posted the petitions challenging the validity of the IT Rules, 2021 for hearing on September 14 at 2.15 pm. .During earlier hearings, the Court had expressed its disapproval over the delay on the part of the Central government in filing its counter. In its counter dated August 25, 2021, the MEITY has submitted that the delay was neither deliberate nor wanton. .Rather, the delay was attributed to there being various challenges before different High Courts across the country, which were not streamlined and uniform. Some petitions have challenged Part II of the IT Rules, relating to 'Intermediary due diligence', while others have assailed Part III of the Rules relating to 'Digital Media and Code of Ethics', it was noted. .However, all cases commonly seek to declare the IT Rules 2021 ultra vires the Constitution and the IT Act. In all, there are nineteen writ petitions at present, and each emanate out of a unique set of circumstances, the MEITY informed.."Therefore, there was an overbearing need for the Union to present a consistent, uniform stand before all High Courts. The need to ensure such consistency led to the delay in finalising the affidavit. The delay was only on account of the need to ensure consistency of the pleadings of the Union and the delay was consequently not wilful nor was it wanton ... The delay is solely attributable to the need to ensure consistent defence to the multiplicity of the proceedings before various High Courts. It was not malicious or intentional", MEITY explained, before delving into defending the validity of the Rules. .A separate counter-affidavit filed by the MIB dated August 26 supported MEITY's stance in seeking the dismissal of the petitions..As also submitted before the Delhi High Court, the MIB asserted that the IT Rules are well within the scope of the Information Technology Act (IT Act), 2000, that they do not infringe any fundamental rights and that there is little evidence to show that they have had a chilling effect on the right to freedom of speech..IT Rules 2021 within scope of IT Act, seeks to prevent misuse of freedom of press; no proof to show chilling effect: Centre to Delhi High Court.There are two petitions before the Madras High Court challenging the validity of the IT Rules, 2021. One is a public interest litigation (PIL) petition moved by Carnatic musician TM Krishna, The second is a writ petition moved by the Digital News Publishers Association, comprising thirteen media outlets, and journalist Mukund Padmanabhan..Other Highlights of the MEITY's counter.Rationale and Justification .The rights guaranteed under Article 19 (which includes the freedom of speech and expression) are not absolute and are subject to limitations under Article 19 (2) and (6) of the Constitution. The IT Rules 2021 have been introduced bona fide, for the benefit of the public and its intention is to ensure adequate regulation of digital and intermediary platforms. The rules are in public interest to ensure the regulation of unlawful content. The rationale and justification for the IT Rules is to substantially empower the ordinary users of digital platforms to seek redressal for their grievance and command accountability in the case of infringement of their rights. Significant reasons cited for introducing the IT Rules, 2021 include (i) significant expansion of online intermediary ecosystem; (ii) growth of online social media platforms and their influencing capabilities; (iii) international developments in social regulation; (iv) compelling need to have a framework to deal with messages that have become viral and resulted in riots, mob lynching, other heinous crimes including those concerning the dignity of women and sexual abuse of children; (iv) alignment of requirements of the law enforcement agencies and other appropriate government or their agencies; (v) need to refine and modernise the intermediary liability framework. The regulations that existed prior did not afford adequate protection to woman and children in particular..IT Rules 2021 was preceded by adequate consultation, and introduced in public interest.It was recalled that in 2018, in view of the spread of fake news, the Minister concerned had conveyed in the Rajya Sabha the resolve of the government to strengthen the legal framework and make social media platforms accountable. Thereafter, an ad-hoc committee of the Rajya Sabha had laid its report in 2020 studying the alarming issue of pornography on social media. One of the recommendations made was to permit the breaking of end to end encryption and to trace the distributors of child pornography. There were growing concerns of safety and security of users particularly, women and children, on the internet. A reference was also made to the case filed before the Madras High Court for linking Aadhaar or any other ID to social media accounts and for special task force monitoring in instances of cyber defamation, bullying, stalking etc. In 2019, the Supreme Court had also noted, in the case of Facebook Inc. v. Union of India, that it is imperative to frame a regime to find persons who are the originators of content that is harmful or which may incite violence or which may be against the sovereignty and integrity of the country or which may be used to commit crimes. The top Court had directed the MEITY to expeditiously finalise the Intermediary Rules and notify them. The Rules were framed after considerable public consultations. MEITY had prepared draft rules and invited public comments on December 12, 2018. 171 comments were received and 80 comments to these comments were also received, which were analysed in detail. An inter-ministerial meeting was held before the Rules were finalised..IT Rules 2021 introduced in line with Section 87, IT Act and as an extension of 2011 Guidelines.The Rules do not suffer from any legal or constitutional infirmity. Section 87 of the IT Act, 2000 lays down that guidelines can be issued for intermediaries and for procedures and safeguards to block public access. It is amply clear that there is no question of excessive delegation or delegation of essential legislative function. The rules are not new, but an amendment to the already existing rules (Intermediary Guidelines of 2011) which have been upheld by the Supreme Court in Shreya Singhal v. UOI. The new Rules have superseded the old Rules of 2011 to meet the requirements of time and new developments in the field of technology. The intermediary (due diligence) rules as provided for in Part II of the IT Rules 2021 are mere amendments or extensions to the Information Technology (Intermediary Guidelines) Rules, 2011..On the ramifications of various provisions of the IT Rules, 2021.The government does not block any content under Rule 3 (1)(b) of the IT Rules, 2021. Rather the provision applies only between the intermediary and the user in so far that the intermediary shall inform the user not to publish any content which is specifically prohibited. The prohibited content is already part of the Intermediary Guidelines 2011, which was upheld by the Supreme Court in Shreya Singhal’s case. Rule 3 (1)(c) has been notified primarily to ensure that users comply strictly with the rules and regulations, privacy policy or user agreement for access or usage of the computer resource of an intermediary. The duty has been cast on the intermediary to remind the users at least once every year that in case of non-compliance with the IT Rules, the intermediary has the right to terminate the usage and access rights of such users immediately. The right to terminate upon non-compliance has been bestowed upon the intermediary to curb the malpractices plaguing the country. A mere reading of the rules would make it clear that the users have not been barred from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating or sharing any information. It is only that the user has to agree not to share information which is defamatory, obscene, pornographic, paedophilic, invasive of another’s privacy, etc. This does not in any way create a chilling effect on the freedom of speech and expression. The cumulative impact of rules 3 (1)(b) and 3 (1)(c) and the threat of termination of access or usage rights does not induce a chilling effect on the users. Instead it makes the users more vigilant and mindful while posting/ sharing any content online thereby making the internet a safe place to communicate. The IT Rules only prescribe blocking of such content that is violative of any law in force for the time being, the MEITY added, referring to Rule 3 (1)(d). The government only has a limited role in seeking the removal of content or seeking information only when a complaint is received by the government and not otherwise. The IT Rules, 2021 only governs the right to publish, download or remove content and it does not by itself make a user criminally liable for posting content. Criminal liability is a consequential action which commences when the penal provisions of an existing laws in force is violated by the user. “Freedom of speech and expression” does not entitle or grant any one the right to publish, circulate manipulative or fake messages to create public order situations. No authority has been empowered (government or platform) to take arbitrary action. Content can be removed only of it is unlawful and after a court order and after being notified by the authorised agency. No other executive other than the appropriate government or its agency is empowered to issue order for removal of content..No chilling effect on Free Speech.The IT Rules do not impose any penalties or sanctions on users who post content in contravention of the IT Rules. The only ramification is the removal of such content or the termination of access of such user by the intermediary, which may be challenged by the user under the grievance redressal mechanism specifically set out in the IT Rules or by way of judicial review. In the absence of additional civil or criminal liability, mere removal of content or blocking of access of users vis a vis information which is in any case unlawful will not tantamount to creating a chilling effect on speech and expression. Referring to Rule 3 (2) which requires the intermediary to remove content within 24 hours on receipt of a complaint that there is content showing the complainant in full or partial nudity or which is in the nature of impersonation or including artificially morphed images, the MEITY added that petitioners cannot sit in judgment over "the content which is partial nudity or not” because the petitioners have no role to play in it. They should not be affected by any such removal if the victim so desires it. The victim’s requirement for removal of content (partial nudity) is an essential criterion for removal. Such content removal does not result in censorship and has to be seen in light of the sensitive issue and from the viewpoint of protecting the victim’s dignity. It is a beneficial rule and the removal of such content on the victim’s complaint can in no way affect the right to freedom of speech and expression of an artist..On provisions concerning tracing of "First Originator" of information.Only "Significant Social Media Intermediaries" (SSMI) are authorized to enable the identification of first originators of information or its computer resource and only by judicial order. There are checks and balances. The purpose behind Rule 4(2) is that by seeking the details of the first originator, the Central government is enlarging the present scope of the rules for effective investigation purposes only. It has also been noticed that fake messages or Child Sexual Abuse Material has potential to rupture the community fabric and has led to public order problems. In Puttaswamy’s case (where the Supreme Court held there is a fundamental right to privacy), it has been rightly observed that right to privacy must be considered in relation to its function in society and should be balanced against other fundamental rights.