Towards Setting Up an Orwellian State: Analyzing the New Intermediary Guidelines in India

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (Guidelines) enacted earlier this year by the Indian Government, replaced the Intermediary Guidelines, 2011 (Erstwhile IG), which had proven inadequate to address individuals' increasing interaction with evolving types of online content. The Guidelines impose more strenuous obligations on intermediaries than the Erstwhile IG, with the paternalistic objective of protecting citizens from misinformation and online harms.

The scope of the Guidelines is extensive. They not only regulate online intermediaries, but also establish a code of ethics to regulate digital media, comprising of news publishers and online curated content providers. They create a categorization of intermediaries, termed as 'significant social media intermediaries' (SSMI), who have at least 5 million registered users, and subject them to additional compliances.

I argue that these Guidelines have taken a leap to metamorphosize into reality, the totalitarian state postulated by George Orwell in '1984'.

I have identified the following concerns with the Guidelines:

Undemocratic:

Once rules are drafted, they are required to be subject to public consultation before they are enacted. However, the Guidelines were brought into effect without any dialogue for majority of their provisions.

Undermining Privacy and Encouraging Self-Censorship:

SSMIs that provide messaging services, such as Meta through WhatsApp? , must enable the identification of the first originator of information if required by an order passed by a court or competent authority in the interest of 'sovereignty and integrity, security, public order', etc. Furthermore, SSMIs could be required to disclose the content of such communication as well.

Though addressing intermediary-related harms is a legitimate aim, enabling the intermediary to trace conversations and report them to the Government would significantly impact user anonymity, trust, and privacy, and have a chilling impact on free speech. It would also discourage intermediaries from instituting end-to-end encryption policies which protect users, and would permit them to undertake pervasive surveillance to adhere to the Government's requests.

The current political climate has empowered the misuse of antiquated draconian laws in order to suppress dissent and criticism against the Government. These Guidelines would further impede free speech, and have a self-censoring effect, where people would not engage in conversations which could be even remotely incriminating.

Furthermore, under the Guidelines, intermediaries are obligated to take down content within 36 hours of receiving a court order or notification from an appropriate government agency that the material allegedly violates a law relating to 'decency or morality', 'public order', etc. Intermediaries are further obligated to provide information and other forms of assistance to government agencies within 72 hours.

The Government has imposed such short timelines to disallow intermediaries from adequately assessing the adequacy of their notice, or to provide a reasonable opportunity for the user to be heard and to defend her right to free speech. Furthermore, the ability of government authorities to demand content takedowns with no judicial oversight allows those authorities to seek the removal of speech for political or other undemocratic reasons, and we are aware of the Indian Government's legacy in this respect. Faced to choose between not taking down content to protect users' rights and taking it down to shield themselves and their employees from liability, intermediaries will inevitably over-comply.

Over-Regulation:

The Guidelines regulate intermediaries via a three-tiered grievance redressal mechanism which is largely driven by the executive, though appears to be self-regulatory. At the first stage, a nodal point of contact for regulation is a publisher-appointed officer; the self-regulatory bodies at the second tier are required to register with the Ministry of Information and Broadcasting. At the third stage, membership of the oversight mechanism is to be shared among different government ministries. This is coupled with an expansive code of ethics which guides intermediaries on what content they can publish.

This framework is subject to misuse when analysed in the context of plummeting press freedom, and creative and artistic freedom in India, in the garb of allegedly hurting religious sentiments, or defaming people in power. By conferring quasi-judicial powers on the executive, and appointing government officials to lead decision-making about the lawfulness of content, this system can be exploited to curb opposition, while make the government "the judge, the jury, and the executioner".

In the context of rising majoritarianism and over-regulation of speech, evinced by India's tumble on the World Press Freedom Index, the enactment of these Guidelines are particularly concerning.

Several petitions have been filed, challenging the validity of the Rules by various individuals, corporates, and civil society organizations, who are worried about the dangerous impact these Guidelines will have on free speech and privacy of citizens. If courts don't strike them down, I am hopeful that enough public pushback will compel the Government to repeal them, and replace them with a set of laws which are backed by public consultation.

Through these Guidelines, the Government has portrayed corporates as citizens' antagonist, while portraying itself as a paternalistic savior, which knows how to represent Indians' interests best. The power of both these entities needs to be adequately curtailed.

The Rules have placed India alongside many other Asian countries that have similar laws regulating digital entities, which are directed toward nationalizing online content, including online news. In order to shield itself from direct criticism, the Government is relying on this false narrative of safeguarding the interests of its citizens through the Guidelines.

The Government is in fact carrying out censorship by proxy, forcibly delegating its unethical acts of censorship to intermediaries. We have seen this with the way Twitter, which initially protested, had to acceed to the Indian Government's order to block and limit access to accounts of individuals who lawfully dissented against the Government and its policies.

These Guidelines take India one step closer to realizing the dystopian state that Orwell conceptualized in 1984. 'Big Brother' is in fact is always watching us, while the 'Party' continues to stay in power, for power.