The threat of termination of access does not have a deterrent effect on users of social media, argued the Ministry of Electronics and Information Technology in a counter-declaration in defense of the Rules for Information Technology (Guidelines for Intermediaries and Code of Ethics for Digital Media), 2021, submitted on Dec. September before the High Court of Madras. “Instead,” the affidavit reads, “it causes users to be more vigilant and vigilant when posting / sharing content online, which makes the Internet a safe place to communicate.”
Rule 3 (1) (c) of the IT Rules 2021 states that social media intermediaries have the right to “terminate the access or use rights of users” who post or share content that is not as specified in the rules Comply with guidelines. Carnatic musician TM Krishna had previously filed a petition arguing that IT rules will limit freedom of expression and privacy in 2021, whereupon the ministry has filed a declaration of oath.
From civil society members like Krishna to big tech companies like Whatsapp, many have claimed IT rules are unconstitutional. There are currently 19 petitions filed against the law in the highest courts across the country. This is the first time the government has defended the rules like this.
Do IT rules threaten freedom of expression?
What the petition argued: Krishna had raised concerns that content creators would censor themselves as a result of IT rules and produce art acceptable to the state. Creating such a deterrent, the petition argued, violated the freedom of expression and expression guaranteed in Article 19.
Reply from the Ministry: MeitY emphasized that the rules are available to normal users and especially victims of online sexual abuse.
Only information that is defamatory, obscene, pornographic, pedophile, violates the privacy of others, including personal privacy, etc., will not be disclosed by the user. The foregoing in no way creates a deterrent effect in relation to the exercise of freedom of expression – MeitY affidavit
What the petition argued: However, the scope for removing content according to the rules is much broader. For example, intermediaries are prohibited from hosting content that is “manifestly false and untrue” or “endangers the unity, integrity, defense, security or sovereignty of India”. The wording of these rules “imposes vague and opaque requirements on social media intermediaries that directly and tangibly affect users’ rights to freedom of expression and expression”.
Reply from the Ministry: MeitY noted that these content guidelines were already part of the 2011 Intermediary Guidelines, which were found constitutionally valid by the Supreme Court in Shreya Singhal v Union of India (2015). The affidavit makes it clear that Clause 3 (1) (c) of the IT Rules 2021, which allows intermediaries to ban users from their platforms, “was notified primarily to ensure that users were strictly following the guidelines “.
Cracking encryption to find perpetrators of fake news and child porn: MeitY
According to rule 4 (2) of the IT rules, significant social media intermediaries who offer messaging services must be able to identify the first author of all information they host or transmit. In fact, messaging services that offer end-to-end encryption may need to create a backdoor to meet requirements to identify the origin of a particular message.
What the petition argued: By enabling such traceability, the rule “practically ends anonymity on the Internet, a right that is otherwise an essential aspect of privacy”.
Reply from the Ministry: Information about the first sender of a message can only be obtained through a court order. “The central government is only expanding the current scope of the rules for effective investigative purposes,” the affidavit said. It added that the government was looking for information from the first author in order to find “culprits behind the publication / transmission of fake news / CSAM”. The affidavit also argued that, referring to the landmark Puttuswamy Supreme Court ruling on the right to privacy from 2017, these were reasonable grounds for exemptions from the right to privacy.
MeitY announces that 19 petitions against IT rules are pending
After Krishna submitted his petition on June 10, 2021, the Madras Supreme Court asked the union government to respond within three weeks. Explaining the delay in filing the oath, MeitY announced that there are a total of 19 written claims pending against IT rules 2021 in the highest courts across the country. The delay was caused by the government’s efforts to ensure a unified stance across all higher courts, according to the rebuttal.
The government has also filed a motion with the Supreme Court to transfer 17 lawsuits against the IT rules to the Supreme Court for joint decision.
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