Almost every ‘Public Policy 101’ course begins by introducing the idea that regulations must stem out of a problem-statement. The policy-maker must carefully set forth the problem and then choose a commensurate solution — this is one of the many reasons that white papers and stakeholder-consultations exist.
In the case of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (IT Rules 2021), however, the problem statement has been contentious since day one, and the process of defining the problem, even more so.
The government has long held that digital news media needs to be regulated out of an interconnected policy need: to create a level playing field for print, broadcast, and digital media, and to empower users through a grievance redressal mechanism. In policy fora, interviews, and public meets, Union Ministers and Secretaries have repeated that a) the three sectors of media require an even regulatory environment, b) digital media lacks regulation as compared to print and broadcast media, and hence, c) a framework for digital news media needs to be developed. The government’s reasoning poses an important question—is the matter of regulating digital news media really this pedantic and apolitical?
The answer lies in analysing the IT Rules in the context within which they emerge—a falling freedom of press ranking, rising numbers of sedition cases, and an increased frequency of internet shutdowns. Most importantly, these IT Rules are embedded within a paranoia about “government perception”, “negative narratives”, and media that is “critical of the government”.
On March 4, 2021, a Group-of-Ministers document from 2020 leaked into the public domain. It highlighted that the ruling party viewed “most of the existing online portals” as being critical of its policies, spreading fake news, and creating false narratives to discredit the government. What was absent from the document was any discussion about regulatory symmetry between the three sectors of media or the need for tackling user grievances1. Instead, the government’s problem statement largely revolved around the need to set right specific “narratives” in the media—a word used 40 plus times in the document. The IT Rules of 2021 for digital news media, thus, seem to stem from the need to solve a PR and communication crisis.
From a policy perspective, it becomes important to analyse whether a regulatory mechanism that gives the government control over media content is the correct, necessary, or proportionate response to a PR crisis. This is especially necessary when such regulation has the capacity to cause collateral harm to citizens’ fundamental rights of expression and information, while also adversely impacting the institution most equipped to hold the government accountable towards its citizens—the press.
The Backdrop: Indian News Media
Barring the past few years of internet accessibility and growth, Indian media has broadly been dominated by print and broadcast platforms. Print media is regulated by a statutory body called the Press Council of India (PCI), which defines professional standards for print media, with the power to conduct inquiries, issue warnings, and criticize journalists and news agencies. Print media is largely domestically owned with a 26% upper limit on Foreign Direct Investments (FDI).
Similarly, FDI in broadcast media is also capped, but at a higher level of 49%. Broadcast news media is required to follow the Programme Code included in the Cable TV Networks (Regulation) Act of 1995. While there is no government-appointed body like the PCI for broadcasting platforms, the News Broadcasters Association (NBA) is a self-regulatory body of TV channels that addresses user grievances. The Electronic Media Monitoring Centre (EMMC) under the Ministry of Information and Broadcasting (MIB), monitors content on TV channels, and specific violations of Programme Code are investigated (suo-moto or otherwise) by an Inter-Ministerial Committee (IMC) under the MIB. The penalties extended by the Committee can range from issuing warnings or advisories to comply with the Programme/Advertising Codes, to directing channels to run apology scrolls on their channels, and can even extend up to taking channels off air temporarily for varying periods of time depending on the gravity of the violation.
Digital media has grown in access and viewership only over the past decade in India. With the advent of low-cost internet and COVID-induced lockdowns, digital news media has seen a spike in both, the number of users visiting its sites and the time they spend on them. News apps, for instance, have seen a 41% spike in usage in the past year. Such upward trends have also led the government to reiterate the need for a framework to regulate this sector.
In 2019, the government announced a 26% cap on FDI in digital media, ostensibly, to bring it in line with print media. This reasoning is now disputed, as the leaked document from March 4 states that the move was intended to curb biases in news reporting due to foreign influences or a “foreign investment component.”
In October 2020, the government issued clarifications introducing greater obligations on news platforms with foreign funding—foreign-funded platforms had to submit their shareholding structure to the government; a majority of directors, as well as the CEO of the platform, had to be Indian citizens, and security clearances were necessary for any foreign personnel deployed for more than 60 days. This triggered a series of investment restructuring and shutdowns among companies running news ventures—including VCCircle, HuffPost India, and Daily Hunt.
In November 2019, the government also introduced a draft bill that proposed mandatory registration (and subsequent power to revoke registration) of digital news platforms with a government agency. While the draft bill was not discussed further, disclosure requirements for digital news platforms have been introduced in the new IT Rules of 2021. A year later, in November 2020, the government included news media under the administrative jurisdiction of the MIB. Many journalists like Dhanya Rajendran, the co-founder of The News Minute, anticipated subsequent use of this amendment for regulating digital media: “Given past actions of the government, it is evident that these changes have not been made in good faith and that these amendments are indicative of a stricter regulatory environment for online media outlets.” Rajendran’s apprehension was not unfounded. This administrative division was subsequently used as a precursor to the IT Rules, 2021, to divide the enforcement jurisdiction of intermediaries and news platforms between MeitY and MIB respectively.
In October 2020, MIB released a statement that mentioned that the government was looking to extend benefits given to print-media journalists to digital media journalists as well—these included PIB accreditation, health schemes benefits, and concessional rail fare, among others. Apart from these benefits, the statement also encouraged digital media platforms to form self-regulating bodies for furthering their interests and interaction with the government. Multiple digital platforms thus launched industry associations like DIGIPUB (with The Wire, Quint, Scroll.in, AltNews, and others as members) and the Indian Digital Media Association (which include Goa Chronicle, Republic TV, OpIndia, and others).
It is important to note that none of these bodies were taken into consultation before notifying the IT Rules 2021. Some, like DIGIPUB, had even written to the MIB, in November 2020 itself, requesting the Ministry to “undertake a detailed consultation with all stakeholders” to avoid hasty regulations. However, when asked why a consultation process was not followed, Union Minister Prakash Javadekar argued that the government was not aware of the number and kinds of digital media platforms present in the country.
Apart from the clear disregard to stakeholder consultations, the IT Rules define the required composition of such self-regulatory bodies and mandate them to register with the MIB. It is no wonder then, that concerns have been raised about Prakash Javadekar’s ostensible “soft-touch regulatory architecture” and the extent of government involvement in the self-regulatory tier of grievance redressal. Such an intervention has been instituted despite the presence of government oversight at the third level of grievance redressal, over and above the self-regulatory bodies.
“Level” Playing Field?
For argument’s sake, let us assume that the government wants to introduce IT Rules for the sole reason of increasing administrative ease—that it wants to make the regulatory frameworks for digital, print, and broadcast media symmetrical. Even then, this approach is based on the false assumption that the digital news media sector is unregulated. There is no dearth of legal options for redressing user grievances in digital media. Very often, in fact, these legal options have been used as intimidation tactics by different governments against small media houses, leading to financial and penal burdens. Journalist Prashant Kanojia was arrested and jailed for a month under nine sections of the Indian Penal Code over a tweet directed at UP CM Yogi Adityanath. Similarly, an FIR was filed by the UP Police against Siddharth Vardarajan, the Editor of The Wire, for an “objectionable article” against Yogi Adityanath. As recently as February 2021, six journalists faced FIRs in five states for their allegedly misleading tweets on the farmers’ agitation.
The following is a non-exhaustive list of laws applicable to digital news media content:
Now, once again for argument’s sake, let us consider the government’s claim that the above-mentioned laws are insufficient to bring digital news media in line with print and broadcast media. I would respond to this with a simple comparative analysis of the proposed regulatory framework under the IT Rules, 2021 with the frameworks for print and broadcast media. Such an analysis demonstrates that the IT Rules create a regulatory landscape that is more stringent for digital media than it is for print or broadcast media. Let’s see how:
While the PCI has no membership from the executive, the digital news oversight mechanism has members from all major ministries of the government. The PCI also does not have any jurisdiction over the content of publishers and cannot penalise journalists. The IT Rules, alternatively, allow the MIB to direct publishers to modify or remove content through the redressal mechanism and also through blocking powers (explained below).
Television news media has a two-tier governance structure, with a self-regulatory body at the first level, and government oversight through a committee that has the power to issue show-cause notices, order removal of content, and temporarily ban channels at the second level. While on paper, it might seem that the framework for digital news media is similar to that for broadcast media, the on-ground practices demonstrate a different reality.
The government has been unenthusiastic to moderate content on television news, leading to recurring interventions by the Courts (for instance, in the Sushant Singh Rajput case or the Tablighi Jamaat case). It has also displayed a readiness to censor digital platforms over broadcasting platforms. In its recent responses to the Supreme Court in the Sudarshan News case, MIB has argued that the Court should regulate digital media before broadcast media, as digital platforms have “a faster and wider reach.”
Thus, the IT Rules hardly resolve even the government’s ostensible problem-statements. In their endeavour to “level” the playing field, the Rules reach out too far in terms of administrative symmetry and in fact pose risks to the financial and legal working of digital media houses.
Constitutional and Legal Challenges
Procedurally, the framing of Rules under an Act is an executive act introduced as subordinate legislation. This implies that any provision of the Rules introduced by the Executive cannot exceed the ambit of the Act prepared by the Parliament. The IT Act 2000 applies to either “intermediaries” or “agencies of the government”, which are platforms that host third-party content and do not publish or curate content themselves. However, the IT Rules 2021, introduced under the IT Act enforce a regulatory framework on digital news platforms, which generate, publish, and curate their own content. Many commentators argue that this is well outside the scope of the Act and can be legally challenged.
The Rules also contain ambiguities regarding obligations on foreign media operating with bureaus in India—the qualifying term “systematic activity” (with respect to publishers of news content) is subjective, and can lead to the regulation of platforms like the New York Times and Washington Post under the Rules. Additionally, terms like “maintenance of public order, and friendly relations with the state” are vaguely used in the IT Rules and can be used as grounds for targeting particular sections of the media. The Supreme Court has previously struck down Section 66A of the IT Act because of “vagueness” in the Shreya Singhal judgement. The Court held that terms like “annoying”, “inconvenient”, and “grossly offensive”, used in Section 66A, are vague as it is difficult for law enforcement agencies and the offender to know the ingredients of the offence.
The IT Rules, 2021 already face a challenge in the Delhi High Court on the above-mentioned grounds. The Foundation for Independent Journalism, M.K. Venu, and Dhanya Rajendran are all petitioners in the case that challenges the IT Rules because they are ultra vires the parent Act, lead to a risk of arbitrary and unwarranted intrusion on expression, and use ambiguous language. Another plea has been filed by LiveLaw in the Kerala High Court for imposing “arbitrary, vague, disproportionate and unreasonable” restrictions on digital news media and social media intermediaries. The Court has responded by issuing a notice to the Centre and has also restrained the government from taking any coercive action against LiveLaw under the IT Rules.
Another plea has been filed by advocate Sanjay Kumar Singh in the Delhi High Court, arguing that the grounds for content removal in Rules are too broad and unconstitutional, and should be struck down. He has argued that the Rules “significantly intrude and unconstitutionally restrict” his free speech and expression on social media.
Section 69A: Using a hammer to kill a fly
Perhaps the most contentious aspect of the IT Rules is the extension of Section 69A of the IT Act of 2000 onto digital news platforms. Section 69A allows the government to block public access to an intermediary, government agency, and now digital platforms “in the interest of sovereignty and integrity of India, defense of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above.” The emergency powers of the government under Section 69A, read with Rule 16 of the Information Technology (Procedure and Safeguards for Blocking of Access of Information by the Public) Rules, 2009 allow it to direct platforms to remove content without any hearing. Within 48 hours of taking down the said content, the platform is given an interim hearing with the government. However, there is no stipulated timeline that the government has to follow to declare its final decision.
Additionally, the involved parties are bound by confidentiality—as a result, the minutes of the meeting, reasoning provided by the government, as well as the arguments of the platforms remain out of the public domain. While the aggrieved party has the right to challenge the blocking order, the absence of public information about the case and the lack of confidentiality make it an impractical cause to fight for. Over the past two decades, governments in power have used Section 69A indiscriminately to ban websites, accounts, and even apps (including Chinese apps like TikTok and PUBG). Most recently, the government used these blocking orders to direct Twitter to take down accounts of journalists and news platforms like The Caravan, in the aftermath of the January 26 farmer protests in the national capital.
Supporters of the IT Rules, 2021 say that Section 69A is not an arbitrary provision of the IT Act and has passed the test of constitutional validity—the Shreya Singhal case struck down Section 66A but upheld Section 69A on the basis that there were adequate safeguards to prevent abuse. However, key commentators on technology-related issues like Nikhil Pahwa and Apar Gupta argue that much has changed since 2015 when the Shreya Singhal decision was announced—due-process has rarely been followed, blocking orders have not been proportional, and no documentation has been available for parties to follow legal recourse. Currently, the Internet Freedom Foundation has challenged the confidentiality provision under Section 69A in the Delhi High Court.
The Moral Challenge Presented by the IT Rules
Apart from the possible legal infringements, the IT Rules create a non-judicial adjudicatory process to moderate content for the press. This raises questions on whether it is justifiable for the executive to regulate the media, which itself is responsible for holding the government responsible for its action or inaction. How does this affect the editorial freedom that platforms exercise? Should a bureaucrat (in this case, the MIB Secretary), a non-elected representative, have the power to institute adverse consequential action on the fourth pillar of democracy? Is there no role of the opposition and Parliament as a whole in determining fundamental questions related to press freedom?
When governments get involved in grievance redressal processes for media content, and when emergency blocking powers are placed in the hands of bureaucrats, digital news platforms tend to self-censor. It is what is commonly referred to as a “chilling effect”. Already, OTT platforms like Amazon and Netflix have cancelled shows that may create legal challenges for them—critically acclaimed shows like Family Man and Paatal Lok stand cancelled for upcoming seasons. As compared to social media or OTT platforms, digital news platforms are lean machines that operate with limited resources or rely on grants and donations for sustenance. Financial and legal compliance burdens like deploying grievance redressal officers, and acknowledging user grievances within 24 hours, can incentivize active redaction of content. Combine this with potential targeting of platforms under the Centre’s new Cyber Crime Volunteers Program, and you get a recipe for intimidation of journalists in a country with an already dwindling Press Freedom ranking.
Supporters of the Rules argue that due to the quantity of digital news content produced, a film-like pre-censorship framework is impractical. Hence, ex-post censorship, through government-mandated takedowns remains the only solution. However, one needs to take a step back and question the presumption of government involvement in the first place. There are no doubts about the fact that digital news media requires a mechanism for users to be able to raise concerns with publishers. There are no doubts that journalists should follow certain ethical standards while carrying on their jobs.
However, any framework that resolves these concerns must not de-prioritise other rights of these stakeholders, especially the freedom of expression and right to information. Neither should a framework give arbitrary powers to the Executive that might allow it to target platforms according to their political leanings or places of origin. Perhaps a better way to create a “level playing field” would be to give statutory authority to self-regulatory bodies and back all codes of ethics through an Act of Parliament, as is the case with print media (Press Council Act, 1978) and broadcast media (Cable TV Act, 1995).
The IT Rules of 2021 emerge in a charged socio-political context wherein digital media is a perceived threat to the government’s image. With this, regulating digital media has become a public relations concern. In an attempt for the government to have a say in the content published by news media, the Rules challenge the very basic tenets of democracy and press freedom. They create an uneven playing field for media houses, even as compared to print and electronic platforms, and promote a culture of restrained journalism.
It is unlikely that Big Tech companies will challenge these Rules; at the end of the day, corporations and the government have the potential to aid each other through access to voters and infrastructure, respectively. Thus, it is likely to come down to civil society members and individual users to challenge the 2021 IT Rules based on potential violations of the rights to free expression and information, as has been the case in most occurrences of government or corporate overreach.
Featured image designed by Sourya Reddy.
 While the 90-page GoM document has not been officially verified, news outlets have reached out to right-wing commentators, senior journalists and ministers present in the meeting asking for clarification.