The Madras High Court on Thursday asked the Union government to respond to a petition by Carnatic musician TM Krishna, who challenged the newly enforced rules on digital and social media as unconstitutional for how it impacts the freedom of expression and the right to privacy.
Including Krishna’s petition, there are now at least eight pleas filed in various high courts across the country challenging the Information Technology (Guidelines For Intermediaries And Digital Media Ethics Code) Rules 2021 that came into force on May 26.
“Without privacy it’s impossible to create and perform. And the privacy that ought to be afforded to us all is intrinsically linked with our right to freedom of expression. Our Constitution contains a commitment to the liberty of imagination. Censorship sans reason offends this commitment. It is in furtherance of my rights to freedom of expression and privacy that I am filing the present writ petition,” Krishna argued in his petition.
The rules define new compliance requirements for social media companies like Twitter and Facebook as well as messaging service providers like WhatsApp, and bring digital news and entertainment content providers under a new regulatory framework.
In the case of social media companies, some of the most contentious aspects relate to the government making it mandatory for them to take down content after an order issued and to trace the originator of a message or a post on their platforms.
In the context of digital media, the rules mandate a ‘code of ethics’ that Krishna in his petition said “imposes illegitimate restrictions on the right to freedom of expression”.
Altogether, Krishna challenged the rules on five grounds: violation of freedom of speech under Article 19(1)(a), violation of the freedom to practice any profession under Article 19(1)(g), violation of the fundamental right to privacy under Article 21, violation of Article 14 since the rules are “manifestly arbitrary and suffer from excessive delegation”, and for going beyond what has been mandated in the main legislation, the Information Technology Act, 2000.
The bench comprising Madras HC Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy admitted the plea and directed the additional solicitor general, R Sankaranarayanan, to file a detailed report in three weeks. The matter will be herd the week after that deadline.
The government has previously defended these as steps needed to protect Indian users, while some of these companies have challenged the rules as being unconstitutional and, in some contexts, impossible to enforce.
Krishna, a vocalist, has consistently spoken on socio-economic, political, caste, and gender issues, and has critiqued the establishment and society on biases in these domains.
He noted that the new rules disproportionately affect artists and musicians.
The rules, he argued in the petition, “offend my rights as an artist and a cultural commentator by both imposing a chilling effect on free speech and by impinging on my right to privacy.”
He added that part-2 and part-3 of the rules violates his rights as a social media user and as an online content creator. “I submit that the Impugned Rules, which are vague and indeterminate, will thwart artists from raising difficult questions against existing aesthetic, gender and caste hierarchies in Karnatic music, and will thwart dissenters who question prevailing cultural mores,” the petition said.
The musician also drew a link between expression and privacy. “For me, privacy, like the music itself, is an experience… When I think of privacy, I think of life, intimacy, experience, discovery, security, happiness, the lack of fear and the freedom to create. I think of liberty, dignity and choice as facets inherent in me and not just as an artist but as a human being.”
Krishna stated it is impossible to understand what may be considered as ‘acceptable speech’ online by the government and therefore artists will be forced to create their work ‘tethered to arbitrary standards set by the state’.
Krishna was represented by advocate Suhrith Parthasarathy during the hearing on Thursday and the Internet Freedom Foundation said in a website admitted that it had helped draft the plea.