The government is considering sweeping changes to internet regulation, sparking concern among members of civil society and internet-cyber security experts that it will lead to increased control and restrictions on free speech online.
On March 9, Minister of State for the Ministry of Electronics and Information Technology of India Rajeev Chandrasekhar made a presentation in Bengaluru on the Digital India Bill, a highly-awaited legislation that will replace the Information Technology Act, which currently regulates the internet in India.
The Digital India Bill has been in the news for more than a year but Chandrasekhar’s presentation was the first official communication on it. User safety from cyberbullying and doxing (or revealing private information), the regulation of fake news, checks on artificial intelligence and dispute resolution mechanisms were among some of the proposals in the presentation.
In the recent past, too, the Modi government has implemented changes in internet regulation laws that have restricted free speech. For instance, since 2021, it has brought in new rules to overhaul content regulation online, giving the government more power to take down content.
Cyber experts fear that the Digital India Bill is another step towards increased government control of the internet.
At the presentation, Chandrasekhar said that the Information Technology Act, 2000, passed in the “early days of the internet”, is now inadequate to regulate the fast-paced developments that have taken place in over 20 years.
The bill is still at the discussion stage and its draft has not been prepared yet. But Chandrasekhar’s presentation provided a glimpse of how the government may proceed.
To start with, the scope of the Digital India Bill is broad. The government wants to protect users from harm on the internet through cyberbullying, defamation and doxing. Some of the concerns that the government wants to regulate include women and child safety, organised information wars, radicalisation and circulation of hate speech.
The Digital India Bill also aims to regulate artificial intelligence systems and wearable technology, and set up regulatory frameworks for non-compliance and data security practices. It will also regulate monopolistic trade practices by big companies to promote competition. Google, for instance, was fined Rs 2,200 crore in October by the Competition Commission of India for abusing its dominant position in the Play Store and Android operating ecosystem.
Safe harbour protection
One significant area the government wants to change is the “safe harbour” protection that is given to intermediaries – such as social media platforms, e-commerce companies and web-hosting services – for content that is uploaded on their website. Right now, intermediaries are not held liable for content uploaded by others on their platform.
However, the types of intermediaries have expanded since with the advent of companies such as Netflix that exercise control over the content on their platforms. The presentation says the ministry will consider whether all such intermediaries should have safe harbour protection. Cyber experts have warned of the consequences of such a move.
“Weakening safe harbour protection would mean changing the entire landscape of what we know the internet to be,” said Namrata Maheshwari, Asia Pacific policy counsel at digital rights organisation Access Now. “In the absence of liability protection for intermediaries against content posted by users, companies are likely to over-censor and people are likely to self-censor themselves.”
Prateek Waghre, policy director at digital rights body Internet Freedom Foundation, referred to the information technology rules announced by the government in 2021 which prescribed several conditions for intermediaries so that they are not held liable for the content posted by users. The rules included informing users about what cannot be posted and swiftly complying with content takedown orders by the government, among more.
“We have seen the government put stringent due diligence requirements on the companies to avail of protection under the safe harbour clause,” he said. “So we can potentially expect the same trend to continue.”
The intermediary rules, which Waghre referred to, have been challenged before the Supreme Court for disproportionately hurting the fundamental right to freedom of speech.
The government has also made changes to increase control over content on the internet. In October, the Centre had announced the creation of a government-appointed panel that will adjudicate requests by users to take down content on the internet.
On January 28, the government notified the formation of three Grievance Appellate Committees that will control content moderation decisions taken by social media platforms in India. Scroll had reported how this will give “the government sweeping powers of censorship on the internet”.
Regulating misinformation, ‘fake’ news
The ministry’s proposal to regulate misinformation, or what it has referred to as “fake news” in the presentation, has raised censorship concerns. It has claimed that the current moderation by social media platforms is “discretionary”. Chandrasekhar’s presentation states that this “discretionary moderation of fake news by social media platforms should be critically examined and regulated under the constitutional rights of freedom of speech and expression”.
Waghre said that in other jurisdictions, such as Turkey, “anti-disinformation regulation tends to be selectively applied against people who are expressing dissent and saying things that are uncomfortable for the government”.
In January, the Centre published draft rules under which a government body can flag news items as being “fake” and intermediaries will be required to take such articles down. This would have given the Centre the power to tag any unfavourable coverage as “fake news”, something the government’s fact-checking body has done several times.
The Press Information Bureau’s fact-checking unit, set up in 2019, has been criticised for labelling news articles critical of the government as “fake” instead of actually verifying whether a claim is false.
Bypassing parliamentary process
Chandrasekhar’s presentation has said that the new Digital India Act will be “evolvable” and that it will follow a “principles and rules-based approach”. It means the law will lay down the principles and then rules will later be framed to implement the law. This trend of allowing the government frame rules for implementation may lead to an “arbitrary exercise of executive power”, experts have warned.
This trend has been observed in other recent bills as well. In the Telecommunication Bill, to regulate telecom services, and the Digital Personal Data Protection Bill introduced last year, large portions of the law have been left vague with rules expected to be prescribed in the future.
“There are two consistent themes in these two legislations, one is greater centralisation of authority with the Central government and the other is discretionary power with executives to prescribe rules,” said Waghre. “...One can expect that to continue with the Digital India Bill. Though, I am willing to keep my mind open.”
This approach also takes away from the checks that the parliamentary process of passing laws allows, such as debates and discussion on the provisions of a bill.
The intermediary rules and its amendments implemented in the last couple of years have been through executive action – by officials of the Union information technology ministry. This has also been one of the grounds on which the 2021 rules have been challenged before the Supreme Court. One of the contentions before the Court has been that it suffers from the executive formulating rules on areas that should be legislated through Parliament.
Lack of consultation
Further, civil society members and technology experts fear that their concerns about the Digital India Bill will not be heard or accommodated. “The consultation process so far has not been as inclusive as it should be,” said Maheshwari from Access Now, adding that the process needed to be more open to the public.
Waghre said that the location and timing of the event in Bengaluru were not made public until Chandrasekhar tweeted about it the evening before. “Though the government plans to hold more consultations in the coming time, it is unclear when they would be done,” he said.
He said that increasingly, the legislative and rule-making process is becoming less transparent. Earlier, one could get responses submitted to draft proposals by filing right to information petitions, he said. “However, with the Telecommunication Bill and the Digital Data Protection Bill, the government has blocked RTI requests also,” said Waghre.
There are also concerns that the government might rush to pass the law with Lok Sabha elections due next year. “The endeavour seems to be to get much of the work done over 2023,” said Maheshwari. “But given the range of subjects the Digital India Bill will likely cover, more time might be necessary for a good draft.” The first draft of the bill is expected by July.