Regulations on Online Speech: Excessive Censorship or Much Needed?

Our Associate, Vishesh Kumar discusses “Regulations on Online Speech: Excessive Censorship or Much Needed?”

Over the past few months, there have been calls from various sections of society for censuring online platforms and putting in a more regulated framework for content on the Internet. While the Internet has historically been a bastion for free speech, the government recently bought in the Information Technology Rules, 2021 with an aim to regulate, inter alia, social media platforms and online curated content websites.

Under the new rules, social media platforms have been divided into ‘Social Media Intermediaries’ and ‘Significant Social Media Intermediaries’ on the basis of the number of users. Further, Significant Social Media Intermediaries have been asked to, as a part of due diligence, appoint a Chief Compliance Officer to ensure compliance with the rules and a Resident Grievance Officer to deal with the complaints in an expedited manner.

Intermediaries have further been asked to remove, within thirty-six hours of a court order or appropriate government agency, ‘objectionable content’ from its website. In addition to the above, intermediaries will also need to preserve necessary evidence of such content for a minimum of one hundred and eighty days to assist the lawful authorities. The rules define objectionable content quite broadly (which is problematic) such that it covers information ranging from those prohibited by law to those relating to public order, decency, or morality. However, no tests have been laid down to define what constitutes ‘decency’ or ‘morality’ under the rules thus vesting discretionary powers in the hands of the authority.

media-998990_960_720

In addition to the above, in a move that has been specifically designed to protect sexual exploitation online, intermediaries have been asked to disable any content that, prima facie appears to be non-consensual and sexual in nature, that has been transmitted with an intent to harass, threaten or abuse within twenty-four hours of receipt of the complaint.

The consequence of all of the above is that such intermediaries, in addition to publishers of news content and online curated content, will now be governed by a three-level regulating mechanism. While Level 1 would be self-regulating measures of the above-noted entities such as grievance officers, Level 2 would be a self-regulated independent body that should be constituted by such entities which shall be headed by a retired judge of the Supreme Court or a High Court and include experts from field of media, broadcasting, etc. 

At Level 3 would be the oversight mechanism of the Ministry of Information and Broadcasting that shall consist of a Grievance Portal and an inter-department committee to hear such grievances. This Level shall also be responsible for issuing appropriate guidelines and advisories.

Furthermore, in order to ensure transparency, all entities covered under the rules shall make full disclosure of all the grievances it received and how these grievances were disposed to the Ministry.

Lastly, as regards Online Curated Content, all content published online shall be classified on the basis of the nature and type of content into U, U/A 7+, U/A 13+, U/A 16+ and A. Such classification shall be prominently displayed and, in a move that may seem a little difficult to execute due to the sheer population of the country, the publisher of such content shall ensure proper measures are in place to restrict the dissemination of content rated ‘A’ to minors.

The rules also go on to talk about the different parameters that should be considered while classifying the content into the ratings noted above such as target audience, discrimination, imitable behaviour, language, nudity, violence, etc.

However, as we speak, the Delhi High Court has already issued notice to the central government in a plea challenging the above rules on the ground that it regulates digital news media.

Even if the initial hurdle is passed and the rules are widely implemented, it would be interesting to see how online curated content websites and social media websites enforce the rules in light of the obvious hurdles of the humongous existing user base which may eventually lead to a backlog of complaints/grievances.

Further, what remains to be seen is whether these rules eventually pave the way for censorship of online content similar to the censorship of movies. Till then, I would recommend you re-watch your favorite foul-mouthed web series just in case the expletives are beeped out by the time the next season rolls around.