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Mainstream, VOL 61 No 6, February 4, 2023

Letter to Union Minister - Electronics and Information Technology by Editors Guild of India (Jan 24, 2023)

Saturday 4 February 2023


The Editors Guild of India
Address: 4/7- A, INS Building, Rafi Marg, New Delhi-110001

24th January 2023

Shri Ashwini Vaishnaw
The Union Minister for Electronics and Information Technology
Electronics Niketan, 6 CGO Complex,
Pragati Vihar, Lodhi Road
New Delhi - 110003

Subject: Concerns regarding draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021

Hon’ble Minister,

amendments to the reads (amendment in blue and italics):

Editors Guild of India [“EGI”] is an organisation established in 1978 to protect freedom of the press and to raise the standards of editorial leadership of newspapers and magazines. Since our establishment, we have consistently defended the freedom of speech and expression of publishers and the right to information of the citizens of India. We have continued our efforts even after newspapers started publishing over the internet.

On 17th January 2023, the Ministry for Electronics and Information Technology (MeitY) uploaded draft amendments to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 [“Rules”], for consultation, inviting responses by 25th January 2023. The amendment in the sub-clause (b) to section 3.1 of Part II of the Rules concerning “Due diligence by an intermediary” reads (amendment in blue and italics):

(b) the intermediary shall inform its rules and regulations, privacy policy and user agreement to the user in English or any language specified in the Eighth Schedule to the Constitution in the language of his choice and shall make reasonable efforts to cause the user of its computer resource not to host, display, upload, modify, publish, transmit, store, update or share any information that,—

(i) belongs to another person and to which the user does not have any right;

(ii) is obscene, pornographic, paedophilic, invasive of another’s privacy including bodily privacy, insulting or harassing on the basis of gender, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or promoting enmity between different groups on the grounds of religion or caste with the intent to incite violence;

(iii) is harmful to child;

(iv) infringes any patent, trademark, copyright or other proprietary rights;

(v) deceives or misleads the addressee about the origin of the message or knowingly and intentionally communicates any misinformation or information which is patently false and untrue or misleading in nature 1[or is identified as fake or false by the fact check unit at the Press Information Bureau of the Ministry of Information and Broadcasting or other agency authorised by the Central Government for fact-checking or, in respect of any business of the Central Government, by its department in which such business is transacted under the rules of business made under clause (3) of article 77 of the Constitution];

The Editors Guild of India is deeply concerned by this proposed amendment giving such sweeping powers to the Press Information Bureau (PIB). At the outset, determination of fake news cannot be in the sole hands of the government and will result in the censorship of the press. Already multiple laws exist to deal with content that is found to be factually incorrect. This new procedure basically serves to make it easier to muzzle the free press, and will give sweeping powers to the PIB, or any "other agency authorised by the Central Government for fact-checking", to force online intermediaries to take down content that the government may find problematic.

Further, the words "in respect of any business of the Central Government" seems to give the government a carte blanche to determine what is fake or not with respect to its own work. This will stifle legitimate criticism of the government and will have an adverse impact on the ability of the press to hold governments to account, which is a vital role it plays in a democracy.

As per PIB’s own website, the bureau is:

the nodal agency of the Government of India to disseminate information to the print and electronic media on government policies, programmes, initiatives and achievements. It functions as an interface between the Government and the media and also serves to provide feedback to the Government on people’s reaction as reflected in the media.

PIB disseminates information through different modes of communication viz. press releases, press notes, feature articles, backgrounders, photographs, database available on Bureau’s website. Information disseminated is released in English, Hindi and Urdu and subsequently translated in other Indian languages to reach out to about 8,400 newspapers and media organizations in different parts of country.

In addition PIB organizes Press Conferences, Press Briefing, Interviews of the Minister’s /Secretary’s and other senior officers for sensitizing media persons on important policy initiatives of the Government. The Bureau also conducts Press Tours to successful project sites to enable media to have first hand account of developmental activities going on in the country.

Therefore it is amply clear that the role of PIB is limited to disseminating information to news organisations on affairs of the Government. By this proposed amendment, sweeping regulatory powers are sought to be given to this agency, which is patently illegal and unconstitutional. The amendment goes even further to also include any "other agency authorised by the Central Government for fact checking", making the ambit of possible government agencies with such draconian powers even wider.

Furthermore, the arbitrariness with which the amendment is even worded is evident by the absence of any rules and procedures for determining what is in fact ‘fake’ or, “false”, which are terms that are not been defined within these rules. There is also the absence of any checks in the form of rights to be heard as well as right of appeal by the originator of content in violation of the principles of natural justice. The proposed amendment goes far beyond even the mandate of Section 69A of the IT Act, which empowers MeitY to take down content in certain enumerated and specific conditions. It is also in gross violation of procedures put in place by the Hon’ble Supreme Court of Indian in Shreya Singhal v. Union of India (2013) case. In the said judgment, the Hon’ble Court had laid down strict procedures for blocking of content-

● A reasoned order after complying with several procedural safeguards including a hearing to the originator and intermediary
● Only two ways in which a blocking order can be passed - one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court.

The Proposed Amendment will bypass all these requirements, and introduce a new, third and a far more simplified route, for passing blocking orders, and without any checks and balances. The intent here is clearly Orwellian and is inherently unconstitutional.The Guild reiterates that regardless of the absence of procedures, the amendment is in itself an illegal move as the PIB has no constitutional authority to be a regulator of press in any capacity.

It must be further noted that the Guild had raised its deep concerns with the IT Rules when they were first introduced on February 25, 2021, claiming that they empower the Union Government to block, delete, or modify published news anywhere in the country without any judicial oversight. Various provisions in these rules have the potential to place unreasonable restrictions on digital news media, and consequently media at large. The Guild has included a copy of the representation dated 6th March 2021 for reference.

The Guild urges the Ministry to expunge this new amendment, and to initiate meaningful consultations with press bodies, media organisations, and other stakeholders, on the regulatory framework for digital media, so as to not undermine press freedom.

Best Wishes,

Seema Mustafa, President
Anant Nath, General Secretary
Shriram Pawar, Treasurer

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