Among the criticisms of the Digital Personal Data Protection Bill, 2023, passed by Parliament on Wednesday is that it has the potential to undermine the practice of journalism in India.
The Bill could force journalists to reveal their sources to the government, enables the government to censor news stories on nebulous grounds and would make it difficult to access government records through the Right to Information Act, experts say.
These concerns have been highlighted in statements released earlier this week by the Editors Guild of India and Digipub, a collective of independent digital media organisations.
Surveillance of journalists’ sources, data
Among the sources of concern is Clause 36 of the Bill, which says that the Union government can ask any data fiduciary to “furnish any such information as it may call for”.
A “data fiduciary”, according to the Bill, is any entity that processes ny personal data. They are the subject of most of the obligations imposed by the Bill.
When applied to a news organisation or a journalist, this clause could be understood to include sensitive data to which mediapersons have secured access as well as details of journalistic sources and whistle-blowers who may be in contact with journalists. It could also include details of the donors and subscribers to media organisations.
“The ability of the state to get information has been expanded,” said Namrata Maheshwari, Asia Pacific Policy Counsel at Access Now, a non-profit organisation that advocates for and defends digital rights around the world. “There are no safeguards on what information it can ask for.”
Maheshwari explained: “This puts journalists’ sources at risk. This poses a danger to investigative journalism and independent media.”
The Bill says that if a journalist or news organisation has been penalised monetarily for violating any provisions as a data fiduciary on at least two previous occasions, the government has the power to block from public access to content of the journalist or the news organisation “in the interests of the general public”.
This power is exercisable on a recommendation received from the Data Protection Board of India established under the Bill. The Board comprises members appointed by the Centre.
This gives the Union government the opportunity to widen its powers of censorship, according to Mishi Choudhary, a technology lawyer and online civil liberties activist working in the United States and India. “This creates a content blocking and takedown procedure parallel to the IT rules, where the Board has been granted similar authority to the Nodal Officer under these Rules,” she said, referring to the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
Under these rules, framed under the Information Technology Act, the Centre can order the blocking of any piece of online content. Digital rights experts have contended that censorship orders have been overused under these rules.
This provision of the Bill is “a censorship tool in disguise”, said Maheshwari. She noted that there is no oversight provided on the exercise of this censorship power. She echoed the concern that the problems with the censorship regime under the Information Technology Act are amplified by the Bill.
“The language of the clause is ambiguous and could be used fluidly to ensure compliance, including by media organisations,” she said.
Prateek Waghre, Policy Director at the Internet Freedom Foundation, agreed. “In today’s political climate, it is not speculative to imagine that this provision of the Bill can be used to target news media organisations,” he said.
RTI Act rendered impotent
As previously explained by Scroll, the Bill undermines the Right to Information Act, since all personal information can now be denied under the Act.
According to Chaudhary, privacy or data protection does not require any amendments to the Right to Information Act.
“The RTI Act has proven to be a crucial tool for journalists and activists in uncovering information of immense public interest,” she said. “When the world is pushing on using technology to create more open government, we are using all framework to increase opaqueness.”
She added, “The amendments to the RTI Act are collateral damage on the way to perfected despotism.”
Maheshwari said, “Till now, reporting has been happening through reliance on the RTI Act without any personal information being jeopardised.”
Waghre said that a lot of information would now be denied under the Right to Information Act.
No exemption for journalists
This followed a well-set convention in place in other personal data regulations across the world, such as the European Union’s General Data Protection Regulation.
But this exemption was done away with in the Digital Personal Data Protection Bill, 2022 that was put out by the Centre for consultation in November. This was retained in the Bill that has been passed by the Parliament.
Newslaundry had written that when it had asked Rajeev Chandrasekhar, Union Minister of state for Electronics and Information Technology about the journalistic exemption being removed from the 2022 version of the Bill, he had said “How can someone get a free pass just because they are a journalist? There is no free pass for anybody.”
Maheshwari warned that the exposure level of media organisations to the Bill is high. They may qualify as data fiduciaries not necessarily because of personal information relied on in a particular news piece, but also by virtue of possessing personal information of their subscribers, supporters or donors.
Waghre too said that all news organisations could be considered data fiduciaries in the specific context of their subscribers’ data.
No rationale provided by Modi government
Waghre rued the lack of transparency by the Centre in the design changes introduced in the Bill.
“The consultation process over the 2022 Bill was flawed,” he said. “There were a lot of problems in it. The responses received by the government were not made public. The government did not explain changes in the Bill from previous iterations of the Bill.”
Drafting a data protection law is not easy, and requires tough choices to be made, he admitted.
“There is a tension between reporting on certain matters of public interest and someone’s right to personal data protection,” he said. However, he asked, “Does that have to be solved through a data protection law, or the evolution of journalistic ethic and practices?”
Combined with the absence of any meaningful discussion in Parliament on the Bill, it is hard to understand the rationale behind these provisions, or justify their adverse effect on press freedom, experts emphasised.