IT Rules 2021 Provide Checks & Balances For Removal Of Unlawful,Fake Content On Platforms; Do Not Advocate Pre-Censorship: Centre To Delhi HC

The Centre has told the Delhi High Court that the new IT Rules, 2021 provide a set of checks-and-balances for removal of unlawful content including fake news available on the social media platform and that the Rules do not advocate pre-censorship.

In the affidavit filed by the Central Government defending the vires of the Rules, it has also been stated that while fake news have the potential to "rupture the community fabric in no time and often leads to serious public order problems", the Central Government by way of the new amendment will be seeking details of the original perpetrators behind publication and transmission of fake news.

The affidavit has been filed in a plea moved by Advocate Uday Bedi, the plea challenges Rule 3 and 4 of the IT Rules for the reason that they provide sweeping powers to the Social Media Intermediaries to voluntarily remove access to information on the basis of complaints received by it from private individuals as it deems fit.

"Online platforms are dynamic in nature. Unlawful content spreads faster from one platform to another. Hence the intermediaries are required to swiftly ensure compliance action (removal of content) to prevent further loss of damage to individuals or the State. If immediate action is nol laken then unlawful content may percolate into other platforms or assume new forms (modified content) and it is difficult to take down such unlawful content once it reaches many platforms in multipIe forms of content," the Centre has added.

Furthermore, it has been submitted that any interim order staying the operation and enforcement of the Rules will affect the legal compliance of the Significant Social Media Intermediaries (SSMIs) and nullify it's objective of creating a clean, safe, trusted and accountable online ecosystem thereby rendering it ineffective.

Stating that the Rules are constitutionally valid, the Centre has further stated that the Rules have a clear focus on enhancing safety of women and children.

Furthermore, it has been stated that a mere reading of the Rules would make it clear that the users have not been barred to host, display, upload, modify, publish, transmit, store, update or share any information which is available on the computer resource of the intermediary.

"Only such information which is, for instance, defamatory, obscene, pornographic, paedophilic, invasive of another's privacy, including bodily privacy etc., will be agreed by the user not to be shared. The aforesaid does not, in any way, create a chilling effect with respect to exercise of freedom of speech and expression," the Centre has added.

"The government has only a limited role in seeking removal of content or seeking information only when a complaint Is received by lhc government and not otherwise. The IT Rules 2021 only gove111s the right to publish, download or remove content and it does not by itself make a user criminally liable for posting content. Criminal liability is a consequential action which commences when the penal provisions of existing laws in force is violated by the user."

The plea had stated that Rules require the Significant Social Media Intermediary to find out the first originator of a message thereby breaching the right to privacy.

According to the petitioner, such an act is not possible "without decrypting all information that is stored, published, hosted or transmitted through such SSMI".

Calling it a shockingly disproportionate and deeply pervasive encroachment over the right to privacy of social media users, the plea reads:

"Impugned Rules are anti-thetical to the fundamental principles of democracy which is part of the basic structure of the Constitution, where the State agencies are liable to be transparent and the citizens are allowed various rights and freedoms."

Recently, defending the validity of traceability provision under Rule 4(2), the Centre had said that it expects platforms to use a mechanism that guards encryption and protects user's privacy.

It also added that it is the duty of the platforms to evolve a mechanism and modify their existing architecture to ensure compliance to the Indian laws. 

Title: Uday Bedi v. UOI