The Internet Freedom Foundation (IFF) is deeply concerned by the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (IT Amendment Rules, 2023) which have been notified by the Ministry of Electronics and Information Technology (MeitY). In addition to amendments relating to online gaming, the IT Amendment Rules, 2023 includes amendments which directly and negatively impact online freedom of speech and the right to receive information.
As per the Rules notified on April 06, 2023, the Ministry will be notifying several self regulatory bodies tasked with determining the permissibility of online games [Rule 4A(1)]. Further, a fact check unit notified, based solely on the discretion of the Union Government, will be empowered to identify fake or false or misleading online content related to the government [Rule 3(1)(b)(v)]. The inclusion of the latter under Rule 3 makes taking action against content identified by such a fact check unit a due diligence requirement for intermediaries. In an event where any intermediaries, including social media intermediaries (Facebook, Twitter etc.), Internet Service Providers (ISPs) (Airtel, ACT, Jio etc.), other service providers, fail to/ decide against taking action on content identified as “fake” or “false” by the notified fact check unit, they will risk losing their safe harbour protections. Assigning any unit of the government such arbitrary, overbroad powers to determine the authenticity of online content bypasses the principles of natural justice, thus making it an unconstitutional exercise. The notification of these amended rules cement the chilling effect on the fundamental right to speech and expression, particularly on news publishers, journalists, activists, etc.
The fact check unit, notified by the Executive, could effectively issue a takedown order to social media platforms and even other intermediaries across the internet stack, potentially bypassing the process statutorily prescribed under Section 69A of the IT Act, 2000. In addition to circumventing the parliamentary procedures required to expand the scope of the parent legislation, i.e. the IT Act, these notified amendments are also in gross violation of the Hon’ble Supreme Court ruling in Shreya Singhal vs. Union of India (2013) which laid down strict procedures for blocking content. Finally, the vagueness of the undefined terms such as “fake”, “false”, “misleading” make such overbroad powers further susceptible to misuse.
IFF will continue to contest these legally contentious amendments to the IT Rules, 2021, as well as the Rules in their entirety. We will be sending representations to the appropriate public authorities, in continuation with our consistent efforts to raise awareness among the government and other stakeholders about the grave threats posed by these Rules.
For press queries, please contact Prateek Waghre at [email protected].