The government has, for decades, been attempting to impose constraints upon independent media. At the same time, the right to freedom of speech has always been subjected to the individual vagaries of administrators and judges while interpreting how the limitations described in the Constitution should actually be prescribed.
The government has constrained the existing institutional structures for the media and extended laws meant for the management of new technologies to apply to freedom of expression itself.
The appearance of a new media form is, perhaps, accompanied by the need for a responsible government to define the manner in which it can and ought to be used for the public good and to align such usages with pre-existing media.
ADVENT OF NEW MEDIA
Over the years, we have seen ordinary speech enhanced by text and graphics in physical form, such as paper or on walls and other surfaces. As a medium, paper tends to be available to one person at a time; walls and so on are public and can be seen by many people. This is easy to understand and much the same applies to almost any medium that has developed since the dawn of recorded history.
The advent of electronics has also led to new media, initially with similar attributes: telephones were mostly accessible privately (in one-to-one conversations), while radio was primarily one-to-many. For both kinds of media, there were and are exceptions. Film expanded the concept of theatre since it was no longer necessary for performers to appear in the presence of an audience.
However, the ability to network computers and devices that use computing technologies led the way to remarkably adept and agile media forms. Communication technologies have emerged whereby text, graphics and video are not only easy produce and disseminate widely, but are relatively affordable too.
This has a remarkable impact on the ability of lawmakers and civil administrators to translate into governance. Since the technologies are emerging and developing very quickly, so are the media forms, and so is their reach. We now have one-to-one media that can be easily, and wilfully, disseminated to many, transforming the very basic understanding of the term conversation.
It is not difficult to realise that the inability to understand creates a sense of loss of control, and the history of systems of government that seek to provide governance, and not control, is still very young. India, in particular, moved from millennia of feudal regimes through a couple of centuries of (first mercantile and then quasi-representational) colonialism to arrive at an independent constitutional democratic republic.
The idea, however, even after seven decades of independence, is still strained. It took over three decades for basic freedoms expressed in the Constitution to begin to be accepted and affirmed by the arbiter, the Supreme Court. It took another four decades to affirm the one unwritten right, personal freedom to be alone (privacy). Each time, it was necessitated as a reaction to overbearing actions by the guardians of law.
And so we have arrived in 2021, when the government has, yet again, moved to exercise executive powers never intended to be its right or to be used in this manner. This particular case has already been discussed widely by specialist media, particularly Medianama, a digital technology news and opinion publisher of digital information, and Internet Freedom Foundation, a rights body.
Broadcast media, such as the videocasts of journalist Faye D’Souza, have hosted panel discussions on the direct impact of the new Information Technology (Intermediary Guidelines and Digital Media Ethics) Rules, 2021, applicable under the Information Technology Act, 2008.
PRIVILEGED OLD MEDIA
The changes proposed cover the regulation, by proxy, of “new” media (all kinds of publicly accessible media available thanks to internetworking technologies) and news media platforms (but not print, television or film). They create, in effect, a privilege for the old media forms, which brook no such intrusions. Further, the Rules seek to dismantle the use of technologies developed to safeguard the privacy of individuals who use such media, whether in private conversation, or for public consumption.
Such Rules are likely to breach both Fundamental Rights and various existing laws, and it seems logical that a process of public consultation is used. Nothing of the sort has happened, and therefore, the courts may expect a barrage of cases to be filed. This follows years in which the State has been unable to create a law governing both private and commercial digital data protection. This is despite assurances in court and compelling orders, and it has failed to create even one law that specifies the limits (scope and period) of any kind of data collection despite a specific direction from the Supreme Court spelling out the constitutional position.
This isn’t the first time that autocracy has trumped over democratic consultation: India’s flirtation with totalitarianism began in 1975. But that episode lasted only two years, unlike now.
This began with the decision to continue using the centralised personal identifier (UID, which has proven itself unable to guarantee either uniqueness or an identity) system. This was done weeks after the present regime came to power. Within a few months, the government began working out into critical financial, payment and tax systems, all of which have debatable value. What they do have in common is conferring the ability upon the State to surveil and track persons of interest.
As it happens, the State will neither confirm nor deny that it has purchased hacking tools designed specifically to break built-in protections for users of secure messaging tools — but that the Israeli vendor says is sold only to governments. Other rapid decisions have had far more economic consequences, and some have a severe civil impact.
One of the latter, and which was debated well before this government came to power, is agricultural reform. While reform might well be a step in the right direction, this particular sea change was pushed into law despite strong opposition in Parliament; the very vote itself remains controversial.
It has resulted in one of the most visible street protests the world has seen, with close to a million, perhaps more, farmers besieging the capital along two borders. It has attracted global attention in terms of both diplomatic reactions and privately expressed dismay, using exactly the same new media forms that are now sought to be rigidly controlled.
Some of the means implicit in the new rules strike directly at the rights of private companies to offer services to the Indian public in the same manner, and with the same freedom and protection built in, that are offered elsewhere in the world.
(Vickram Crishna is a trained engineer and manager. The author’s case against the Union of India and Others, opposing the operation of the state-operated technology-based national identification scheme, also resulted in a definitive judgment affirming the fundamental right to personal privacy. The views are personal.)
The article was originally published in The Leaflet.