Carnatic musician TM Krishna has moved the Madras High Court, challenging the constitutional validity of the new information technology rules and said that it impinges upon his right to privacy, reported Live Law. Krishna’s plea also said that the rules impose “arbitrary, vague, disproportionate and unreasonable” restrictions on digital news media and social media platforms.
“I submit that the impugned rules offend my rights as an artist and a cultural commentator by both imposing a chilling effect on free speech and by impinging on my right to privacy”, Krishna said in his affidavit.
A division bench comprising Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy on Thursday directed the Centre to file a counter-affidavit within three weeks.
The new information technology rules – which were announced in February and became effective in May – are framed to regulate social media companies, streaming and digital news content, virtually bringing them, for the first time, under the ambit of government supervision.
Among other things, the “Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021” regulations require these platforms to appoint chief compliance officers, in order to make sure the rules are followed, nodal officers, to coordinate with law enforcement agencies, and grievance officers. All of them should be based in India. It also requires social media platforms with over 50 lakh users to help in identifying the “originator” of messages upon the government’s request.
During the hearing on Thursday, Advocate Suhrith Parthasarathy, who is representing Krishna, said that the rules were in violation of the fundamental rights to freedom of expression and privacy and also ultra vires its parent legislation, the Information Technology Act.
In his plea, Krishna said that he cherished the right to free expression and privacy as an artist and cultural and political commentator. The petition was prepared by Internet Freedom Foundation and Advocate Vrinda Bhandari.
“For me, privacy, like music itself, is an experience. When I think of privacy, I think of life, intimacy, experience, discovery, security, happiness, the lack of fear and the freedom to create. I think of liberty, dignity and choice as facets inherent in me and not just as an artist but as a human being.”— TM Krishna's plea
Krishna said that the part II of the rules, which regulate social media platforms, were in violation of his rights as a social media user. He added that part III, regulating digital news media and over-the-top platforms, were violative of his rights as an online content creator.
The musician said that the vagueness of the laws was concerning as it might affect his ability to explore Carnatic music and take the art form beyond its “existing, narrow social confines”. “My apprehension today is that the work that I produce in trying to reshape art and in dissenting from the conventional mores of society will fall foul of the Code of Ethics contained in the Impugned Rules,” the plea said. “Indeed, publishers of online curated content, facing the threat of sanctions imposed by Part III of the rules, are likely to err on the side of caution.”
He added that the “vague and indeterminate” rules will stop artists from raising difficult questions against the “existing aesthetic, gender and caste hierarchies in Carnatic music” and also prevent people from questioning the prevailing cultural conventions.
“A reading of the Code of Ethics contained in the Impugned Rules makes it impossible to glean what will be considered by the Union government as acceptable speech in the online world. In any event, it is submitted that determining what is acceptable isn’t the sole prerogative of the government. It is a role that ought to be fashioned in accordance with the constitutional scheme, which the Rules manifestly fail to do.”— TM Krishna's plea
Besides the Madras High Court, the Delhi, Karnataka and Kerala High Courts have admitted pleas to consider the validity of the new rules.
The Wire had moved the Delhi High Court in March, arguing that argued that even though the Supreme Court struck down Section 66A of the Information Technology Act, which had similar provisions to regulate content, the Centre introduced the new rules to “do indirectly what it cannot do directly.” Later in the same month, The Quint also moved the Delhi High Court, submitting that the rules are “meant to be a ruse for the state to enter and directly control the content of digital news portals”.
Again in March, the Kerala High Court had restrained the Centre from taking coercive action against Live Law under the new digital media rules. Kannada news portal Pratidhwani also approached the Karnataka High Court in the same month against the rules.
In May, messaging platform WhatsApp also moved the Delhi High Court challenging a provision under the new social media rules, which mandates the company to identify the “first originator of information” when authorities demand it.
Twitter too has been critical of the regulations. The social media company had said it was concerned about the “potential threat” to freedom of expression as India’s new social media rules came into effect. The company had added that it will “strive to comply with applicable law” in India, but will be strictly guided by the principals of transparency.
In June, Alphabet Inc’s Google had moved the Delhi High Court, saying that the new rules for digital media were not applicable to the search engine.