Emergency Powers under the IT Rules

Why in news?

The Ministry of Information and Broadcasting (MIB) directed YouTube and Twitter to take down links sharing the BBC documentary ‘India: The Modi Question’ under the emergency provisions of the IT Rules, 2021.

What is the case about?

• BBC documentary case - A BBC documentary on the Gujarat riots of 2002 questions the actions taken by the then Gujarat government led by Prime Minister Narendra Modi.
• The MIB directed YouTube and Twitter to take down links sharing the documentary under Rule 16(3) of the IT Rules and Section 69(A) of the IT Act, 2000 that allow for “emergency blocking”.
• Notably, there has been no official press release for the online blocking of the BBC documentary.
• Reasons - For allegedly defaming the credibility of Supreme Court, sowing divisions among the communities, making unsubstantiated claims regarding actions of foreign governments in India.

What are the emergency provisions?

• IT Rules - Under the IT Rules, 2021, notices for content takedown can be issued to social media intermediaries in emergency situations upon the satisfaction of the Secretary, MIB.
• Reasons - These emergency notices can be issued if the MIB believes that the content can impact the
  • Sovereignty
  • Integrity
  • Defence, or security of India
  • Friendly relations with foreign states or public order
  • To prevent incitement to any cognisable offence
• Since 2021, the MIB has used the emergency provisions at least seven times, most prominently for YouTube.

What can users whose content has been impacted do?

• If a platform has on its own taken down some content, the user can approach the grievance officer of the platform to raise a dispute, which they are to redress within 15 days.
• If a platform has taken down content on the basis of the emergency provisions in the Rules, the legislation does not offer any direct recourse.
• The only option users have in this case is to approach courts.
• However, the blocking orders are confidential and the users will not know the provisions under which their content was flagged.

What are the concerns regarding online content regulation?

• Natural justice – In Cricket Association of Bengal case, the Supreme Court recognised that the right to receive and impart information is implicit in free speech.
• In the case of Shreya Singhal vs Union of India, the Court upheld that blocking powers under Section 69A subject to reasons have to be recorded in writing.
• However, blocking orders are marked as “confidential” and transmitted to service providers, making it difficult for the authors an opportunity of defence and the general public to challenge them.
• Press releases that are selectively issued instead of disclosing the text of orders becomes a form of opacity.
• Perpetual emergency - In 2021, the Bombay High Court suspended Rules 9(1) and 9(3) that establish a code of ethics for online news platforms and a three-tier grievance redress mechanism headed by the central government.
• In its interim order it held that it is healthy to invite criticism for the nation to have structured growth.
• There is a rise in use of emergency powers despite the top court staying the existing proceedings in 2022.
• The BBC documentary that has been described by public authorities as “propaganda” reflecting “a colonial mindset” cannot be understood how it qualifies as an emergency.
• Centralisation of executive power - In 2021, the rules were amended to increase government control over online platforms and news publishers.
• It also required news publishers to follow a vague moral code of self-censorship that permitted grievances to be escalated to the government, leading to stay orders by High Courts.
• In 2022, it created a government censorship body sitting in appeal of all content moderated by social media companies.
• In 2023, MeitY wanted to create a self-regulatory system for online gaming and gambling companies, which is against federalism, given that legislation on it is a State subject.
• The unlimited censorship powers is also seen as a direct violation of fundamental rights.

References

1. The Hindu | India’s juggernaut of censorship
2. The Hindu | On the BBC documentary on PM Modi
3. The Indian Express | Emergency powers for online content