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As the Parliamentary Standing Committee on Communications & Information Technology (“Committee” or “IT Standing Committee”) convenes to examine the conduct of business of ministries/departments under its mandate, we write to the Chairperson highlighting our stances and engagement with issues that form part of its subject roster for the year 2024-25. Review and recommendations of the Committee can play a significant role in protecting user interest and safeguarding our informational privacy.
Background
Every year, Departmentally Related Standing Committees convene to examine and oversee the state of executive and legislative affairs at the ministry/department level and translate discussions and decisions of the Parliament into action through specific recommendations. The IT Standing Committee is one of 24 Departmentally Related Committees in existence and is constituted under Rule 331C of the Rules of Procedure and Conduct of Business in Lok Sabha. It comprises 31 members and oversees the Department of Telecommunications (“DoT”) and Department of Posts under the Ministry of Communications, Ministry of Electronics and Information Technology (“MeitY”), and Ministry of Information and Broadcasting (“MIB”).
For the year 2024-25, the committee will take up a diverse roster of subjects across these ministries/departments. We wrote to the Chairman, Shri Dr. Nishikant Dubey, highlighting our areas of work and underscoring our past engagement with the selected subjects, while offering support and assistance in advancing digital rights in a way that champions constitutional rights at its core.
Summary of our Inputs
On the emergence of “OTT” platforms and related issues: Part of the Committee’s agenda is to examine the emergence of “OTT” platforms and policy responses thereto. We have in the past, voiced concerns about the Telecom Regulatory Authority of India’s (“TRAI”) narrow definition of “OTT” which deems them as direct functional substitutes for traditional telecommunication services. Such a reading is misplaced and undermines the vast and vibrant world of “OTT”, which may have varied use cases spanning from communications to content curation. We have previously written to DoT on the matter, but we hope the Committee will reflect our concerns in their annual report.
On review of mechanism to curb Fake News: The Fact-Check Unit (“FCU”), established under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 (“impugned Rules”), was empowered to evaluate the accuracy of online information and impose consequences for non-compliance with its determination. IFF provided legal assistance to the Association for Indian Magazines to challenge the constitutionality of the FCU provisions in the impugned Rules, before the Bombay High Court. On September 26, 2024, a final verdict was delivered in the case where the majority opinions—those of Justice Patel and Justice Chandurkar struck down the amendments with a “majority view,” holding them unconstitutional. This reinforced the point that digital platforms and the content shared on them are subject to the same constitutional protections as traditional forms of speech. We requested the committee to issue necessary recommendations to MIB which will facilitate meaningful engagement with civil society to introduce necessary changes and safeguards in the procedure for fact checking content.
Additionally, we asked the committee to look into the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 which introduced changes in Part I and II of the IT Rules, 2021, that further raised some alarms for platform and content governance in India. The Rules introduces vague, arbitrary, and undefined phrasing under sub-clauses (i) to (ix) of the amended Rule 3(1)(b) such as “knowingly and intentionally communicates any misinformation or information”.
On review of implementation of laws related to all forms of Media: MIB released the Broadcasting Services (Regulation) Bill, 2023 (“Broadcasting Bill”) for public consultation on November 10 and we shared our comments on the Broadcasting Bill on December 07, 2023. It was reportedly withdrawn by MIB due to backlash on its provisions, however, ambiguity persists due to the absence of any formal notice or press release on its status by the MIB. The Broadcasting Bill extended MIB’s regulatory ambit to any person who broadcasts news and current affairs programs through a digital medium (such as an online paper, news portal, website, social media intermediary, or another similar medium). Concerns over how “news and current affairs” is currently defined under the Broadcasting Bill and uncertainty over the scope of application of this clause augment concerns around the erosion of democratic principles of online free speech. It also proposed the expansion of the regulatory framework currently applied to traditional broadcasters to “OTT” broadcasters.
In light of the several documented instances of the Union government imposing restrictions and exercising ultimate discretion with the content published by publishers of online curated content as well as news publishers, we requested the Committee to urge MIB from reintroducing the Broadcasting Bill or attempting any such regulation in the future. Read more of our analysis on all developments regarding the Broadcasting Bill here.
We also urged the Committee to deliberate on the powers given to MIB through Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 keeping in mind the past recommendations made by various stakeholders to restrict the overbroad and arbitrary censorship of content which is perpetuated by the Rules.
On issues confronting the Telecom Sector in India: As part of our work on safeguarding digital rights and freedoms, we have and will continue to engage with the Indian Telecommunication Act, 2023 (“Telecom Act”) and the Rules notified thereunder. In our assessment of the Telecom Act, we have voiced concerns that it replicates language and choices under the colonial Telegraph Act, 1885 and introduces provisions that may undermine constitutional rights and innovation in the digital sector. Key provisions relating to surveillance and internet suspension, which have a long lasting, profound impact on our digital rights, have been replicated verbatim from the 1885 law.
On August 28, 2024, DoT released four draft rules under the Telecom Act, namely the draft Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024, draft Temporary Suspension of Telecommunication Services Rules, 2024, draft Telecommunications (Telecom Cyber Security) Rules, 2024 and draft Telecommunications (Critical Telecommunication Infrastructure) Rules, 2024. We wrote to MoC and submitted our in-depth comments and recommendations on each of the draft rules. Our detailed submissions are available here. We requested the Committee to urge DoT to take note of our enumerated concerns.
On internet and telecom suspensions: IFF has monitored and pushed back on several counts of internet and telecom shutdowns across India over the years. We have provided legal assistance to petitioners before the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India, (2020) 3 SCC 63 and Foundation of Media Professionals v. Union Territory of Jammu & Kashmir, (2020) 5 SCC 746. Settled judicial opinion states that when an internet shutdown is imposed, a Review Committee must be constituted under Rule 2(5) of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, which will review all internet suspension orders within 5 days of their issuance and record its findings on the legality of such orders. We urged the Committee to review and examine the implementation of these principles at the state and union level. We also noted that the Committee has previously issued recommendations on telecom suspensions and their impact on rights and liberties, upholding the Hon’ble Supreme Court’s orders listed above, which is deeply appreciated.
On issues related to social and digital platforms and their regulation: We, at IFF, work towards preserving free speech on the internet, and push back against any attempt at arbitrary censorship or content takedowns. We believe that arbitrary blocking is harmful not only for operational transparency but also for India’s democratic ethos. We requested the Committee to urge MeitY, MIB, and the DoT to proactively make public the reasons for blocking specific URLs or service providers.
On the emergence of Artificial Intelligence and related issues: With the rising instances of government functionaries deploying Artificial Intelligence (“AI”) at the union and state level, along with regulatory ambiguity regarding AI, we raised some of these concerns with the Committee. Given some conflicting statements, rushed policy interventions, and concerning suggestions in the past year, we wrote to the Committee highlighting caution against hurried policy or regulatory actions based on a few closed-door meetings with technology platforms, and to engage in a broader multi-stakeholder consultation with journalists, fact-checkers, policymakers, civil society organisations. We also reiterated our concern regarding the lack of transparency in government use of AI in India. We request the Committee to review the use of AI in governance, and encourage transparent deployment of emerging technologies.