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“What was considered news earlier was in the form of what the medium through which you would receive it. That has completely changed today. That is the reason why today we are struggling at some level to understand how to interpret what news and current affairs are, because they are being clubbed together. Honestly, I don’t believe that there is a straitjacket formula in which you can put it. I can open the IT rules and read the definition for you, but that’s not going to help any of us here because it is that subjective,” said Sneha Jain, partner at Saikrishna & Associates, at the MediaNama event held in Delhi on April 23.
Let’s see how ‘news’ and ‘publisher’ are defined in IT Rules, 2021 and why it won’t help us understand the free speech issues:
The subjectiveness of what is news: “I can go back to the copyright case that I was doing on SMS rights, where the cricket score was considered news of the day. Now, somebody can argue that, listen, it is news because we are a cricket-crazy nation. We are. It is news to a person who’s willing to pay that money to know if Sachin hit a six or he got out just before he was supposed to make his 100. But it is not news to 100 other people who don’t care about cricket at all. It is very subjective. I think what is important is for us to understand that it’s not about news; it is about speech,” said Jain.
“None of this matters; MeitY will take down whatever is critical of the Prime Minister. Its process and enforcement is not tied to one single sentence in the IT Rules. It doesn’t matter. I have seen it. It’s not obeying court orders,” said Apar Gupta, Founder of the Internet Freedom Foundation, when moderator Nikhil Pahwa asked him whether MeitY’s framework of news and current affairs impacts freedom of speech.
Should there be a difference between a professional journalist and a news-related content creator? “That distinction should exist. That’s not a problem. The problem is who is going to decide what should be the distinction? It’s the domain of the parliament, not of the executive. The executive in this is basically the police. I mean, in the first session in the morning, what we heard was this selective application of what they think should be regulated. That’s the problem. We had multiple examples in which people who said anything inconvenient for the government or powers that be were being clamped down upon. There is opacity in the process. There is a need to find out why you are being clamped down. This can only go away when there is complete transparency in the process,” said Jatin Gandhi, Vice President of the Press Club of India.
Why is accountability selective when publishing is universal? “If something needs to be addressed or censored because it may be violative of a law, shouldn’t that apply to users too? Because everyone’s a publisher now. You can’t have a situation where everyone’s a publisher, but accountability is only mainstream media,” asked Nikhil Pahwa, Founder-Editor of MediaNama.
“Conceptually, there’s no problem with that. The problem here is that, see, the media space is already overregulated. The news space is already overregulated, right? But it is done through an umbrella of multiple laws. Even the penal laws, BNS, et cetera, apply to the news and information space. The problem really is the manner in which it is being done – the over-assumption of powers or the executive just usurping everyone else’s powers, whether it’s parliament or whether it’s the judiciary; that’s where the problem is. It’s not about regulating news. News has already been regulated,” replied Gandhi.
“The problem here is the manner in which it is being done: the arbitrariness, the opacity, and the selective applicability. With every knee-jerk, you come up with a new set of iterations or amendments, and this is going to go on. This has to shift back to parliament. There’s a problem. Disinformation, misinformation, hate speech – these are real-world problems with real-world harms. These need to be taken care of, but not by the executive in this fashion,” said Gandhi.
“If we can have 16,000 police stations being empowered to issue takedown notices, we should be having these 16,000 discussions first in open society and a build-up to a law.” – Jatin Gandhi, PCI.
“This is essentially a backdoor mechanism to bring in what the Broadcast Bill tried to introduce,” said Alaqshendra Singh, Associate Partner at TMT Law Practice. The 2024 Broadcast Bill intended to treat news-related content creators who monetise their content as digital news broadcasters as of now. You can read the full analysis of the bill here.
Do intermediaries have an editorial function when they reward anonymity and virality? “The fact is that if you [intermediary platforms] can reward anonymity, malice, and virality and place them much higher than news, then definitely you are not just playing an editorial function. I mean, editorial function comes with a set of values and ethics. You’re actually only promoting what gives you more profit, irrespective of what real-world harms it causes,” said Gandhi.
Intermediaries are not passive anymore and therefore should be responsible: “Intermediaries cannot be passive. Their roles are not passive, so therefore their responsibilities and liabilities cannot be passive. They need to be responsible,” said Jain while arguing that the “reasonable efforts” under the IT rules can be invoked when intermediaries take a complete passive or hands-off approach.
Sneha Jain further affirmed that if “an algorithm is making certain decisions, then to that extent, you have to hold them accountable for them [decisions]”, and it directly comes from “the fact that intermediaries can no longer take a hands-off approach.”
MediaNama hosted this discussion with support from Meta, Amazon, and Google. Our community partners for this event are the Internet Freedom Foundation (IFF), the Centre for Communication Governance (CCG), and Digipub.
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You can also read MediaNama’s coverage of this event here.
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