Unclear understanding of 'unlawful content' may end up curbing free speech

When the government decides to systematically intrude upon the private lives of its citizens, the line between the personal and the political no longer remains clear.

The information technology ministry this week reportedly proposed an amendment to rules under section 79 of the Information Technology Act.

The amendment would necessitate intermediaries under the IT Act to proactively identify and take action against unlawful content or information online.

This move, unsurprisingly, follows a notice issued to WhatsApp in July 2018, warning it against ‘abetting’ fake news as a ‘mute spectator’ through its end-to-end encryption technology, which could potentially invite legal action.

The Information Technology [Intermediaries Guidelines (Amendment)] Rules 2018 will insert a new rule 3(5), introducing traceability on online platforms, breaking this encryption in order to retain information including messages on WhatsApp.

The proposed amendment will also require intermediaries to coordinate and respond to government queries within 72 hours in case it is directed through an appointed nodal authority in order to ensure compliance with the law.

What to regulate – the fake news conundrum

Amid concerns raised by the judiciary and civil society about fake news on social media, the government has intervened to trace the origins of such content which deliberate misleads or misinforms public opinion.

The proposed amendment, however, falls short on several counts.

Without a clear understanding of what speech is ‘unlawful’, the amendment enables agencies to target groups and individuals based on mere suspicion and without confirming if the content is actually illegal. While Article 19(2) lays down reasonable restrictions on free speech, the understanding of fake news within free speech jurisprudence remains murky.

If the proposed purpose is to weed out fake news, it is imperative to first attempt to define or characterise it, rather than to preemptively censor speech. The large-scale implementation of this decision may lead to self-censorship and the muzzling of dissent, completely antithetical to democratic practice.

The proposed amendment, in this regard, seems to put the cart before the horse.

Who should regulate online content?

Beyond inquiring into what content the government intends to regulate, one needs to contemplate – who should regulate harmful content? Before the proposed amendment is given effect, there is a need to determine whether permitting government agencies to examine content is more desirable than self-regulation by intermediaries themselves.

Business Standard