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Quietly published in the government gazette on April 6th by the Ministry of Electronics and Information Technology, the new regulation amended a law whose full title is the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. It is usually referred to as the Information Technology Rules 2021 or IT Rules 2021 for short.

Clear censorship

It is clear from the amendment that this ministry has a very one-sided view of digital media ethics because it creates a fact check unit of the central government with the arbitrary power to block or suppress any information that it deems to be false.

This amendment is a draconian one and is a clear censorship, said Dhanya Rajendran, the editor-in-chief of The News Minute and chairperson of Digipup, a consortium of Indian digital news outlets. Why should the government be the judge, the jury and the executioner?

Rajendran, who closely follows the central governments attempts to control news and information, was the author of a petition against the IT Rules 2021 that was filed with the Delhi High Court.

The IT Rules 2021 is already under legal purview, she said. Several cases have been filed against it in various courts saying that the rules are unconstitutional and that they are against freedom of expression. While these cases are still pending in the supreme court, the government is now trying to sneak in this new draconian amendment.

No checks and balances

Rajendran cites last Januarys use of the IT Rules to censor a BBC documentary entitled India: The Modi Question, describing how Modi used his power base in Gujarat to become prime minister. As soon as the documentary was released, the government invoked an emergency provision in Rule 16, Part III of the IT Rules 2021 to block access to the documentary on the grounds that it lacked in objectivity.

The IT Rules 2021 has already given the government emergency blocking powers, so why did it have to bring in a new amendment? she asked. To make online censorship even easier, many observers responded.

Overzealous intermediaries

The government has created grievance appellate committees to hear appeals against takedowns of content including journalistic content by social media intermediaries, as the big social media platforms are called. But no provisions ensure that these committees are independent, says Prateek Waghre, the policy director at the Internet Freedom Foundation, a New Delhi-based NGO that defends online freedoms in India.

There is also inadequate representation of civil society and members with expertise in areas such as online trust and safety [which] will affect their ability to engage with complex issues and questions that are bound to surface, Waghre told RSF.

In Waghres view, the new amendment simply enshrines government officials as arbiters of online free speech with no checks or balances. He is also concerned about an excess of zeal on the part of the platforms.

Given the lack of clarity and prevalence of an environment which has low tolerance for dissent, intermediaries may be overzealous in their interpretation of these additional due diligence requirements from the government, Waghre said.

Geeta Seshu, the founding editor of the Free Speech Collective, an online publication aimed at promoting free speech and the right to dissent, called the amendment part of the larger attempt to chip away at the freedom of online news media sites and social media platforms, which began with the IT Rules, 2021.

Arbitrary process

Seshu told RSF: It not only seeks to falsify published news that goes through a rigorous process of verification but also debunks and discredits it in the eyes of the public. Moreover, the process to determine this is arbitrary and opaque. The censor who stands over the shoulder of news sites and arbitrarily decides what is fake and what is bona fide will have a devastating chilling effect on press freedom.

Rajendran hopes the amendment will be struck down. This amendment has no place in a democracy, she said. As Orwell said, The really frightening thing about totalitarianism is not that it commits atrocities but that it attacks the concept of objective truth.

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