BackIt’s important to ring-fence creative expression online
Several industry associations have written to India’s ministry of electronics and information technology, asking for clarifications to the Narendra Modi government’s latest Information Technology (IT) Rules, 2021
PremiumSeveral industry associations have written to India’s ministry of electronics and information technology, asking for clarifications to the Narendra Modi government’s latest Information Technology (IT) Rules, 2021. The rules, notified in February this year, put social media companies, digital media and news services under greater scrutiny. The digital media industry has also requested time to comply, for want of standard operating procedures. It is worth examining this development from a public interest perspective.
The IT Rules, 2021, expand the scope of Section 69A of the IT Act 2000, originally meant to govern intermediaries. Digital applications like social media are intermediaries in the strictest sense, since they merely facilitate interactions among internet users. The rules now also empower the state to block access to curated content on digital media platforms, in the interest of “the sovereignty and integrity of India, defence of India and security of the State" and other such grounds, under Section 69A. Recently, the Section was invoked to take down problematic accounts on Twitter, and also to ban popular apps like TikTok and PubG.
Terms like “in the interest of the sovereignty and integrity of India" can be fairly nebulous in scope, especially when applied to creative expression. For instance, satire could be confused for sedition. In fact, this is precisely what happened in 2012 to Aseem Trivedi, a cartoonist who was arrested by the Mumbai Police on charges of sedition. In this landmark case, the police claimed that Trivedi’s cartoons, which uniformly mocked the political class for corruption, were designed to denigrate national symbols and spread “anger and hatred against the State". However, the Bombay high court held that these were frivolous grounds that impinged on the cartoonists freedom of speech and expression, protected by the Indian Constitution. The presiding judges even committed to specify criteria for the application of India’s sedition law, and held that “if there are no (such) parameters, there will be serious encroachment of a person’s liberties guaranteed to him in a civil society".
A similar exercise is required to delimit Section 69A through examples of violative content, as the Section will now govern creative expression, which is often deliberatively provocative. According to the legal scholar Richard Ekins, “A well-formed legislature exercises rational agency in legislating, forming and acting on complex intentions to convey certain meanings and to change the law in the chosen way, for the common good." Therefore, legislative intent must not be lost in any rule-making exercise under the IT Act. Section 69A allows the Centre to block information available online, provided that it’s convinced of the reasonableness of the restriction, as it relates to the freedom of speech and expression. However, without guiding parameters, creators will constantly walk on eggshells, wondering whether their web series, movies or songs are reasonably within the bounds of free speech.
At the same time, an important principle in law is that of ‘ignorantia juris non excusat’: ignorance of the law is not an excuse for its violation. One cannot possibly argue, therefore, that a particular offence was committed under a lack of knowledge or understanding of its illegality. This makes it even more important for those upon whom laws are promulgated to understand their meaning. Ambiguities in official guidance, combined with the inexcusability of ignorance, puts the subject of the law into a cruel bind.
The centrality of precedent across legal systems signifies that the law must be engaged with as it operates in the real world, through examples that demonstrate it in practice. This understanding is reflected even in some of the statutes that form the backbone of our justice system, which are replete with practical examples and illustrations: The Indian Penal Code of 1860, the Evidence Act of 1872, the Contract Act of 1872 and the Transfer of Property Act of 1882 all provide illustrations to accompany provisions and lend clarity to their meaning.
Other jurisdictions have adopted a slightly different approach. The Conseil supérieur de l’audiovisuel (CSA), the authority that regulates electronic media in France, has a very limited and clearly defined role: to ensure that broadcast media adhere to the country’s laws, which, in turn, are quite specific. The Gayssot Act, for instance, makes it illegal for anyone to deny that the Holocaust ever happened. There are separate laws that prohibit homophobia and the advocacy of illegal drugs. In Japan, formal censorship of any kind is banned by law. However, Article 175 of the Japanese Criminal Code does make pornography illegal. On the other end of the spectrum is the United States, which adopts an absolutist approach. The First Amendment of the US Constitution allows total free speech, including utterances that may qualify as hate speech.
It is up to India’s policymakers to decide which approach to choose vis-à-vis regulation of digital media. One thing is clear: there is no scope for ambiguity if they want to retain the current framework under the IT Rules. The creative sector that underpins media and entertainment is expected to touch ₹1.73 trillion in revenues in 2021, thanks largely to double-digit growth in digital media. It’s time to clearly spell out what content is unacceptable, so that this flourishing ecosystem knows which boundaries to push and which to respect.
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