Practically every week, there is either an announcement from the ministry of information and broadcasting or a leak from the ministry of electronics and information technology that some websites, social media accounts, YouTube channels, and even apps have been blocked in India. Whenever this happens, there is an outcry about how the process is opaque, the reasons flimsy, and intentions unclear.
The latest in the litany was the I&B ministry blocking 45 videos from 10 YouTube channels.
But how does this process work? We break it down.
While the electronics and IT ministry is armed by the section 69A Blocking Rules of the Information Technology Act, the I&B ministry’s blocking powers are arguably the result of the IT Rules, 2021 and the November 2020 amendment to the Allocation of Business Rules. There is a fair amount of ambiguity about whether or not the I&B ministry has the power to actually issue blocking orders at present – partly because of stays imposed on certain rules under the IT Rules, 2021 by the Bombay and Madras High Courts.
As laid down in section 69A of the IT Act, there are six reasons, of which at least one must be satisfied, for which the IT ministry can order the blocking of online content: India’s sovereignty and integrity, defence, security of the state, friendly relations with foreign states, public order, and preventing incitement of any cognisable offence related to the above.
For example, the government issued a blocking order against this tweet which reads, “What Gujarat suffers today, India suffers tomorrow.” Senior advocate Arvind Datar, while arguing before the Karnataka High Court on September 26, argued that the government did not specify how this tweet violated any of the six reasons listed under section 69A. Datar is currently representing Twitter in the Karnataka High Court where Twitter has challenged the legality of the government’s blocking orders.
Datar cited another tweet that said “I love my country. I am ashamed of my government.” It is not clear who tweeted it because the tweets were submitted to the court in a sealed cover but the tweet is a common enough refrain while critiquing any government across the world. As Datar argued before Justice Krishna S. Dixit on Monday, “Every opposition party will say that...This is a democracy. I can criticise the government in the strongest possible terms.”
Similarly, journalist Tanul Thakur approached the Delhi High Court after his satirical website Dowry Calculator, which mocks the practice of dowry, was blocked in 2018 by the department of telecommunications. As a result of Thakur’s case, for the first time, the confidential blocking orders were actually shared with an individual user of the internet beyond the intermediaries.
Wait, what about I&B’s power to block content? What is the ambiguity?
Part III of the IT rules 2021 deals with news publishers and publishers of online curated content (streaming platforms). The concerned ministry is the I&B ministry through the November 2020 amendment to the Allocation of Business Rules which gave the ministry control over online audio and video content and also digital news publishers.
A slew of petitions was filed across the country last year challenging the legality of Part III. In August 2021, the Bombay High Court stayed Rules 9(1) and 9(3) – 9(1) requires digital publishers to abide by the Code of Ethics, and 9(3) lays down a three-tier grievance redressal mechanism for digital publishers.
In September 2021, owing to confusion about whether Bombay High Court’s order would have effect across India and because notices were issued to publishers after the Bombay High Court’s order to adhere to the Rules (including Rule 9), the Madras High Court also reaffirmed the stay on Rules 9(1) and 9(3) in September 2021.
But there are two schools of thought on what the stay on Rule 9(3) means.
The first school thinks the stay is on the entirety of Part III because the formation of an inter-departmental committee headed by the I&B ministry – which is tier three of the grievance redressal mechanism – derives its existence from Rule 9(3). Without the existence of this committee and its chairperson, how can emergency blocking orders be issued? Thus, the I&B ministry would not have blocking powers as long as the Bombay High Court order remains in effect.
The second school of thought believes that only the three-tier grievance redressal mechanism is suspended, while the I&B ministry retains its powers to issue emergency blocking orders. This also means that self-regulatory bodies – forming tier two of the mechanism – cannot refer any complaints to tier three, ie, the inter-departmental committee. In fact, it would also mean that the formation of self-regulatory bodies and their registration with the MIB is also not required since all those obligations are born out of the application of Rule 9(3).
For what it’s worth, no grievances thus far have actually made it to level three. But every registered self-regulatory body has been dealing with grievances escalated from tier one (grievance officer appointed by the publisher).
All the experts we spoke to concurred that the three-tier grievance redressal mechanism remains suspended. But interestingly, despite the obligation to form and register a self-regulatory body being stayed by two high courts, six of the eight self-regulatory bodies registered with the I&B ministry registered themselves only after the Bombay High Court stay. All of them continue to function, mainly because of fear of being called non-compliant.
Which complaint goes to which ministry?
This is, to a large extent, pretty clear.
User-generated content on any social media platform and “problematic” websites are adjudicated by the section 69A committee under the ministry of electronics and IT.
All content from publishers of news and current affairs, and publishers of online curated content goes to the inter-departmental committee under the I&B ministry.
But all is not crystal clear.
For instance, if a random user posts controversial content on Facebook, their post will go to the electronics and IT ministry. If there’s an issue with Newslaundry’s website or Newslaundry’s content on its YouTube, Twitter and Facebook channels, it will go to the I&B ministry.
But if I, a journalist employed by Newslaundry, have a personal Twitter account that I use for work and to shitpost – to which ministry would my potentially controversial content go? I use my Twitter account to post my reports and to express inane opinions. And this is true for most journalists’ social media accounts.
Similarly, what is the threshold beyond which a social media account is classified as an account of a news publisher? If the threshold is registering with the I&B ministry under Rule 18 of the IT Rules (which mandates furnishing information to the I&B ministry), does that mean any account dealing with current affairs but not registered with the I&B ministry would go to the electronics and IT ministry?
That doesn’t seem to be the case. For instance, YouTuber Dhruv Rathee’s video was blocked by the I&B ministry on September 23. He is not registered with the I&B ministry but his content usually deals with current affairs. And in the absence of clearly demarcated lines around who is a news publisher on the internet, all YouTube channels geared towards IAS aspirants would come under the I&B ministry – but that is not the case.
What’s up with the Indian map?
The government frequently issues blocking orders under section 69A against websites and social media content that use non-Indian versions of the India map. This is especially true of maps indicating Jammu and Kashmir’s borders as different to those recognised by India, or showing Aksai Chin as part of China.
It should be noted that no other country or international body recognises the Indian version of the map. As a result, international publications and websites often publish versions that do not conform to India’s version.
Dhruv Rathee’s video was taken down by the I&B ministry for this reason, and Wikipedia and Twitter have been pulled up in the past.
Rathee told Newslaundry it was “not my intention to depict the map wrongly”, pointing out that the same video also used India’s version of the Pakistani map.
“I know what the correct map is and what is not,” he said. “I always tell my editors to be cautious about it...Now that this thing has become a controversy, there are many videos on YouTube talking about this and showing the wrong map. Will those videos also be removed?”
In Rathee’s case, he said he took action as soon as YouTube contacted him about the legal complaint. He said he blurred the map within a day of being informed, but the I&B ministry still blocked his video two days later.
“What is the process here? First of all, they need to make it clear,” he said. “Are they going to remove the video anyway if there is a problem? Are they going to give people time to rectify their mistakes? Nothing is clear, to be honest.”
The issue around India’s map has also led to a fair amount of self-censorship. For instance, the last act of Tom Cruise’s Mission Impossible: Fallout was set in Kashmir. Cruise’s character actually mentions the place and the movie displays a map showing the team’s travel from Europe to Kashmir. However, this map – you guessed it – was not the Indian version. Both Netflix and Amazon Prime edited the movie in India so that it makes no mention of Kashmir or shows the map.
Is there any recourse for affected users?
Blocking rules under section 69A and the IT Rules provide for a designated officer and an authorised officer respectively to, on a best efforts basis, find the person behind the contested content so they can appear before the respective committees. In reality, this rarely happens. Only big intermediaries like Facebook, Twitter and Google appear before them, not individuals.
The only recourse then is to approach courts with writ petitions. This has only happened four times: Facebook challenging a section 69A order in the Calcutta High Court; Twitter challenging blocking orders in the Karnataka High Court; Tanul Thakur approaching the Delhi High Court; and Shreya Singhal approaching the Supreme Court in the same petition where section 66A of the IT Act was struck down.
It’s difficult for individuals and small organisations to challenge these orders. Moreover, an RTI response from August 2022 reveals that since the blocking rules were passed in 2009, the electronics and IT ministry’s review committee has not unblocked a single piece of content, suggesting that blocks are forever with no scope for correction.
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