Choked voices & Indirect curbing on online speech: the continuing crackdown; an insight into battle between regulation and freedom of speech at stake

by Shelal Lodhi Rajput

1. Introduction

2. Concerns: The Unfettered Power & Violation of Freedom of Speech

3. Summing up: Concluding Remarks

Introduction

In the recent past, the issue of curbing misinformation or “fake news” has featured as one of the fundamental regulatory priorities for governments around the globe. Resorting to India, the Apex Court routinely makes remarks on the need to curb the dissemination of ‘fake’ or ‘false’ news online. Resultantly, the Ministry of Electronics and Information Technology (“MeitY”) formulated the Information Technology (Intermediaries Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”) under the Information Technology Act, 2000 as a piece of delegated legislation under the Parent Act.

On April 06 2023, MeitY notified the amendments to the IT Rules. It raises concerns over the fundamental right envisaged under Article 19(1)(a) of the Constitution as well as on the International Human rights law, as in past also highlighted by the UN Special Rapporteur on the Right to Freedom of Speech and Expression. Under rule 3(1)(b)(v) of the IT Rules now social media intermediaries (“intermediaries”) are obligated to inform their users through internal policy/guidelines to not publish, share or host fake, false or misleading information (It will be identified by the notified Fact Check Unit of the Central Government) with respect to any business of Central government.

Concerns: The Unfettered Power & Violation of Freedom of Speech

Non-compliance or failure in obligating the aforesaid would render the safe harbour provision (“SHP”) envisaged under Section 79 of the IT Act for intermediaries otiose (as they will be exposed to losing their immunity from civil/criminal liability as intermediaries). SHP’s notions are also encapsulated under Rule 7 of IT Rules. According to the SHP, an online platform/intermediarylike Facebook or Twitter cannot be held accountable for the information/content/data posted on such platforms by users. However, the immunity of SHP comes with certain conditions. SHP wouldn’t be given effect if any intermediary “fails to expeditiously” remove a post/content/information/data even after the government flags that the content is being used to commit unlawful activity or is not in accordance with the rule of law.

The government says that the “weaponization of misinformation” will not be allowed.

With these amendments, the Central Government bestowed itself an unfettered authority to necessitate intermediaries to remove the content/information that has been declared as ‘fake’ or ‘false’ by the ‘fact-check unit’, effectively making the Central government an arbiter of permissible online speech.

Notably, how it would be done is not provided under IT rules and it exists as lacunae in existing amendment. For instance, there are no safeguards or exceptions provided to ensure that the government will not fact-check a claim made by their opposition party as misleading and get it removed from intermediaries. Notably, presence of safeguards doesn’t assures or confirm that there will be no chilling effects at all, however, having no safeguards altogether exacerbates the possibility of same. Thus, it clearly depicts that initial effect of amendment leads into a chilling effect on speech being disseminated in online world via intermediaries.It leads to inquiry about the constitutionality of Rule 3(1)(b)(v) against the touchstone of Article 19(1)(a) and principles of natural justice. The jurisprudence regarding Article 19(1)(a) has expanded over time with several decisions where brazen regulations vis-à-vis restriction on freedom of speech and expression shall be avoided and no further grounds shall be added as reasonable restriction u/a 19(1)(a).

The  applicability of the chilling effect doctrine is apparent and evident prima facie in Kunal Kamra v. UOI and ors.. The “chilling effect” refers to a scenario where imprecise speech-restricting laws leave a large grey area within which citizens have to  guess where the line between legality and illegality lies. Citizens then self-censor even lawful speech due to the vagueness of what is illegal. Resulting in overregulation and even stifling of lawful speech. In Kunal Kamra v. UOI and ors. , imprecision of “in respect of any business” and “reasonable efforts”, created a chilling effect where intermediaries needed to act as per the directions of the central government’s Fact-Checking Unit to remove any information/data/content flagged by it, rather than risking losing the SHP.  

• Zechariah Chafee Jr., a legal expert, first used the phrase in 1950 to describe how government surveillance and censorship during the Cold War era affected free expression. Since then, the idea has been expanded to encompass additional restraints on the right to free expression, such as peer pressure, corporate influence, and cyberbullying.

• The phrase “chilling effect” is used to describe the detrimental effects of censorship and other forms of interference with free expression rather than as a test or benchmark. It is frequently used to evaluate the possible effects of new legislation or regulations on free speech and the free exchange of ideas in legal and policy disputes.

It’s vital to note what factors would be applied to test whether regulation by the Fact-Check Unit constitutes a chilling effect on freedom of speech and expression online is not as of now determined by the Apex Court. Reliance in this regard is placed upon Anuradha Basin v. Union of India (2020), where the court noted that ascertaining the constitutionality of a regulation against the chilling effect doctrine cannot be “purely speculative, unless evidence is brought before the Court to enable it to give a clear finding”. Undoubtably, at present we don’t have evidence on the argued point as the applicability of amendment still needs to get practicality by seeing the light of day in the coming time. However, from a normative understanding and settled jurisprudence it is evident that prima facie   the amendment is unconstitutional as being violative of the Freedom of Speech and Expression u/a 19 of the Constitution of India as well as International Human Rights Law u/a 19 of UDHR of an individual and various International covenants.

Along with ‘chilling effect’ the amendment comes with what free speech scholar Margot Kaminski termed as “conforming effect”  As censorship is costless (and challenging it is costly), several rules/bans/regulations like in the Kunal Kamra casewill go unchallenged in a Court of law. What this leads to is a “conforming effect”, where the grounds set out in the IT rules to curb the free speech under the garb of regulation. According to the conventional theory of chilling effects, people consciously choose to self-regulate in order to avoid some perceived or explicit consequence.  Research in social psychology on decision-making and conformity points to a more complex and pervasive chill that silently influences many people even when they are unaware of its effects. There might be a chilling effect on speech, but the greater harmful factor is probably a conforming effect. Widespread surveillance is likely to discreetly increase the influence of the majority, which could lead to ome people choosing not to read a specific book or article or learn more about a new issue. This effect of conformity need not be brought about by actual threats or even the knowledge of the affected person that she has been persuaded.

The amendment seeks to establish a procedure for internet censorship by the institution of ‘Fact-Check Unit’ and by prescribing the power to those who are not currently statutorily empowered to take down online content in contrast to the statutorily prescribed persons under Section 69A of IT Act. Thus allowing, the bypass of Section 69A for blocking content in online milieu which is violative of the principle of natural justice.  

Usi ka shahar, wahi muddai, wahi munsif, hamen yakeen tha hamara kusur niklega(your city, you are complainant, you are judge, I was confident that I will be declared guilty) lines by Ameer Qazalbash rightly remember by Prof. Yogesh Pratap Singh in his latest piece to sum up as how IT rules are violative of principle of natural justice i.e., Judge in its own cause.

On ascertaining the constitutionality of amendment on the test of proportionality it becomes evident that the amendment fails  to adhere to the test. Firstly, the IT Rules infringe Art.19 and the principles of natural justice as the Central governmentis the sole arbiter of truth,  thus being a judge in its own cause. Secondly, the impugned Rules don’t fall within any of the eight categories enumerated u/a 19(2) and thus, are ex facie void ab initio and unconstitutional. Lastly, the IT rules are not a ‘least restrictive’ measure as the government can issue clarifications/corrections with respect to information the government feels/believes is incorrect in the context of the expression “respect to its business”.

Summing up: Concluding Remarks

While, a censorship is costless but challenging it is costly, the issues raised by the amendment are peculiar and unique in nature. With the enactment of the amended IT rules tripartite facets involving the relationship between intermediaries, their users and the State’s authority to uphold the true contours of the constitution along with maintaining an equilibrium for not curbing freedoms envisaged under the constitution comes at stake (though contrary was done here). From foregoing, another inquiry can be made in trajectory of indirect censorship or chilling effect that amended IT Rules impose on speech but author refrains from travelling in that territories. Moreover, the Bombay High Court has already received a challenge to the constitutionality amended IT Rules. The government is instructing intermediaries to exercise due diligence and filtering online content in accordance with the government’s perception of reality, which may be the first time a court will address a legal issue involving the restriction of online speech. All eyes are once more on the judiciary to preserve Article 19(1)(a)., one of the Constitution’s beloved and darling articles.

To sum up, Justice Brennans’ remarks  from the decision in NAACP v. Button fit aptly here which basically state that the freedom of speech needs “breathing space to survive”. The adoption of Fact-Check Units and unrestricted control over government-related news inhibits exactly that. It is hoped that soon the amendment will get challenged in court and the Apex Court will step up to protect freedom of speech from being choked as it did previously.