 Hello and welcome to NewsClick. I'm Puranjali Goharthakurtha and with me here from Kolkata, I have Johar Sharkar. Johar Sharkar is a former Secretary, Ministry of Culture in the Government of India. He's a retired officer belonging to the Indian Administrative Service and he's also a former Chief Executive Officer of Prasad Bharti Corporation. The government-owned organization that runs Durdarshan All India Radio. So Johar, thank you so much for giving NewsClick, the viewers of NewsClick, your valuable time. I see you are living up to your reputation and you have become a trenchant critic of many decisions and of the current government. So today we are going to focus on the new information technology rules which were issued really in late February and it has a convoluted name. The information technology intermediary guidelines and digital media ethics code rules. And these have been a matter of considerable contention. It's under litigation as we talk and I was going through your detailed article which was published in March 12th of March in The Wire where to summarize what you've said you have said that this is a clear case of overkill. Now we're going to discuss in detail the three segments of the new rules. One would be the social media, social media such as WhatsApp and Instagram and Facebook and Twitter. Then we're going to talk about the OTT platforms or the over-the-top platforms which include Netflix, Amazon Prime, Hotstar etc etc and which includes films which have been controversial of late including Thunder. And last but not the least we're going to talk about news and what we call online news and digital online news. But first George, if you can give us an overview why did you consider this a case of overkill? It's both overkill and overstretch. My primary contention was that the existing provisions of both the IT Act, Information Technology Act, there are four scattered subsections that have been referred to and also the Constitution, the second schedule where the bars are laid out. None of them seem to convey that the information and broadcasting ministry is empowered to go into such a vast area. Now there is always this balance between free speech and restrictions and it's going on in favor of one and two are well aware. Now whether the Constitution, I've started with the Constitution and the two items, three items listed under the second schedule, empowering the information and broadcasting ministry, I've also referred to what we call the allocation of business. The allocation of business was quietly amended in last November, quietly amended and nobody noticed it. Whereby the information ministry was now empowered, so to say in quotes, to get into this area. But that's highly debated and I'm sure this will be trashed out in the courts very soon because we get the indications, two, three parties have already gone to court. Now, including the wire, including the publishers of the wire. Including the wire. So they're based on these so-called tenuous powers. This document has been drafted somewhere between the lawyers and the bureaucrats because I can see a lot of verbose bureaucrates as we call them, wish list after wish list coming in and spoiling the sharpness of the act. Okay, now the three categories that you just referred to, I'm reiterating because they need to be understood by people in the right context. In one go, the IT Act, which gives the, let us say the solar energy, so to say, the IT Act wishes to control number one, WhatsApp and other forms of social media. Number two, they're going for control of OTT films and serials. And number three, they desire to control the online media. Now, what's the difference? Let me explain. What's common is all of them are known as over the top technologies. In other words, they do not use either wire or cable or towers or these sort of communication, traditional forms of communication. They go straight to the satellite and come down to you. It's almost like mobile technology. So they have been enjoying a certain degree of freedom. Which perhaps required regulation to some extent, sense regulation is best, but this government comes up, drums up a lot of restriction and say these are all self-regulating. As long as you come home by seven o'clock, as long as you abide by this sort of Indian logic has been used. Now, these three sectors that I've just pointed out, what is common between WhatsApp and Netflix? Tell me. What's common between Amazon Prime and the wire? What is an audiovisual method? The other is an alphanumeric. So to say with a couple of visuals thrown in, these are separate entities, separate platforms that have all been bundled together. And in bundling together, the controls of one have been extended to the other rather mindlessly. I have been secretary in patches in the ministry of I and B. And if I'd seen such a draft like that, I'm sure I'd have thrown it back. Jordan, I'm stopping you here. I want to go into some detail into each of these three points that you have discussed. And I want to go into the excruciating detail, the so-called fine print. But just now for the time being, just sticking to the big picture, you have said clearly that here is the government flexing its muscles. And you are clearly, I mean, you've used very strong language. They are muscles, they're using the muscles in the wrong place. Okay, we've even called it a sort of hegemonic overreach, very characteristic of the present regime, which you described as aggressive. And you even say that you haven't named him the former attorney general of India Mukul Rohatgi has even felt that the social media rules have been hastily put together, which according to you is a resounding indictment. Okay, now I want you to just first talk about one point. This whole issue and this we are nearly talking about the digital media platforms. We are really talking about WhatsApp. We are talking about Twitter, Instagram, etc., etc., Facebook. And this is where we know now why we had two ministers addressing the media. One was the information and broadcasting minister, Mr. Prakash Javdekar. And we also had the minister in charge of communications and the department and NETI, that's the Ministry of Electronics and Information Technology, Mr. Ravi Shankar Prasad. Now, the point is, you have something called Section 79 of the Information Technology Intermediary Guidelines Rules. The Act is of the year 2000. The rules were put together in 2011, which is supposed to provide what is called a safe harbor to intermediaries for that host, what are called user-generated content. And it exempts them from liability. To put very simply, so an internet service provider, an email service provider, social media platform, when somebody posts, uploads or publishes some information on it, it is its user-generated content without editorial control and it's exempt from liability. Now, how are these provisions and how are these rules now being changed? Well, these have all been superseded. It starts by superseding all existing rules. This omnibus rule that has come up in 2021 supersedes all previous rules and subsumes part. So, that part is clear. And anyway, the short point is, look, these are huge platforms. You have yourself quoted the government's own statistics and you're pointing out the large numbers of people who are availing of the services provided by these social media platforms. We thought WhatsApp had 400 million users, but now we learned that the, sorry, that's 40 crore you say, but now we learned this more than that. It's now more than 50 crore. Now, Facebook has 40, 41 crore users according to the government. Instagram 21 crore. These are mind-boggling numbers as you yourself pointed out. Twitter has less than two crore users, but it has become as to use your language metaphor, metamorphosed in the recent past into a more than official international notice board on which political and opinion leaders pin their views, musings and provocations. So, if you have 53 crore Indians using WhatsApp. 53 crore. Yes, 53 crore Indians are using WhatsApp. You need some regulation and the government has been talking about regulation and it's not just regulation. There has been a huge amount of contention on what is called the traceability of the originators of the content, because these are providing what are called end-to-end encryption. So, you have a crazy man in Rajasthan killing another laborer and his relative films that grew some scene, but WhatsApp says, what can we do? We don't know who's generated that content, who's receiving the content. What do you do? Do you not need some sort of regulation? I have said that some regulation was required and it is not as if the platforms are not exercising regulation. The platforms have been exercising a lot of screening behind the back. Now, WhatsApp is intensely popular. It covers more than half the adult population of India. Our adult population above 14 is around 100 crores and it covers around 53 crores. That means A, because it is free. First is because it's free. The explosion in its membership actually reveals the sense of trauma, the sense of fear that prevails that if I use WhatsApp, if I use SMS, A, I'll have to pay for it. B, it's open media, it can be cracked and I'll be branded as a regime dissenter and anti-national god knows what as a decisionist. So, people are using WhatsApp as a shelter from Big Brother. That's the first point. The second issue on which I have been insisting, if you have powers to say laser eliminate, eliminate by laser, certain growths that are not conducive to health, for God's sake do it, but do it in the right place. Not anyone who uses WhatsApp knows that it is not treated as the biggest platform for circulation of fake news. At 90% of the fake news that circulates in WhatsApp, one can see from the mensphere, from the intention, from the gains of those who have circulated it, that they are ultra-rightists. Most of them are anti-Muslims. Most of them condemn the condemn morality. Most of them attack libtards. Now, why would a libtard attack another libtard? We have not bereft ourselves of common sense. So, all of these are factory produced. I'm using what factory produced within India or by some of these vicious supporters outside at fake. There are factories, organized factories that produce these fake news and that's why we kept referring to what you call WhatsApp University. It's a whole school that has come up in the last I'll just quote you. As you pointed out, everybody knows that WhatsApp and similar within QuartzSafe messaging services actually offer a much needed shelter to millions of common citizens who are paranoid about big brothers constantly roving eyes and need end-to-end encryption to speak their minds, even in a democracy. Maybe you should have put democracy in quotes as well, but that's another story. And then you go on to say that it's quite utopian to expect a regime that cites on fake and exaggerated news and on hatred to act against these organized factories and depraved individuals who produce such poison. And what baboos feel about collaborating with the regime's skewed and perverse emphasis is however a matter left to their conscience. You're being very charitable towards your own tribe of baboos I would say. You're a former babo I would say. I have left it to their conscience because mine was a very troublesome one which landed myself into a lot of trouble also. They may have some of them surely have more convenient ones, but nevertheless getting back to WhatsApp as a prime case of how an intermediary is being misused. WhatsApp is the biggest drain. I use the word drain because it contains filthy material and round the clock people reinforce each other's prejudice. I mean, I get some from crackpots 5 to 10 that says that Hindus built the Taj Mahal. I know it's around 25 years old that crackpot called PNO brought out there. So these are circulated again and again mythical stories about India's greatness. I mean the entire agenda of the Hindu right comes out in bucketful. My question, some of them are vicious, some of them are malicious, some of them are provocative, some of them attract the law. So let me see if you use your law to get to them. Okay. Okay, Johoda, let's talk a little bit about the so-called online curated content. You know the film and the web series and let's talk specifically about two aspects. One is so-called obscene content and the other is so-called hateful content. Let's look at both these aspects and you have been very sarcastic. I quote you as saying after its runaway success in outsourcing violence to vigilante groups, it meaning our regime discovered it was easier to outsource the business of tormenting defined voices through hypersensitive proxies and these are ideologically in total sync with the regime and pounds on liberals and perceived heretics and they file criminal cases and first information reports claiming that their religious or cultural sentiments have been hurt and the police as well and several magistrates are quite willing to throw the book at dissenters. Look, we've had serials like secret games in at least I haven't seen the kind of depiction of violence and say full-frontal nudity that you saw there or Mirzapur but you have another more recent example of Tandem where Amazon Prime apologizes for allegedly offending the sentiments of Hindus. Now here are two things you've talked about offending religious sentiments and the second is obscene content. I'd like you to dwell a little bit about both on both these aspects of the new regime. Obscenity has been described and calibrated year after year for the last 150 years at least. So we know where we stand and what shouldn't be shown to what audience. Sains that are quite common in the West would still be let us say quite controversial in India. So there the INP ministry has some amount of legal power. I've seen check their powers and film and cinema screening is part of their past. The problem is they can't set up sensor boards for all these things and get it. It's an industry problem. They can't unlike exhibition films that are shown in halls that have a run that go through the sensor process. The INP ministry is trying this process of initiating complaints. This rule relating to films and serials and to the next book that is called Digital Online Media. I don't know how the two can be jumbled because as I've said they are different from each other as chalk is from cheese. But anyway, they two have been bundled together and the entire machinery of hegemony there, control there is derived, is achieved by these proxy complainants. I have used the term proxy because they are standing 10% for the regime and yet are not distinctly part of the regime. Many of them are of course office bearers of BJP and this and that but most of them try to be more discrete. So discretion was never a part of their culture. They are mainly proxies and these proxies have actually started their game around four, five years ago. Every time a journalist says something that is on the borderline according to them or offending their easily very easily offended sentiments, somebody files an FIR. You remember that famous FIR that was filed in Bihar against the 15, 20 of us saying that we had offended. I mean everybody was there and finally the superintendent of police felt it was enough for them. Usually what happens is the Thanedar accepts them for the glory of it. The junior magistrate accepts them so that he gets a chance to see the celebrity and things like that. I mean, these are very cheap feelings, but the sum and substance of it is by finding these official cause of action should have been that if you really feel offended with the section, you draw out the powers under the Indian penal code, you draw out your own powers and go in through a public prosecution if you have the guts. But when you're not sure and when you're not sure of your ground and when you would like this to be sort of offloaded from your public prosecution system, you give it to someone who's a Bhakt. I mean, that's the only term we can use who's again ably supported by other Bhakt lawyers and financed by people I would not like to mention and they go on harassing journalists so it started first journey and now it matured into films. Alright, I'm going to talk about journalism and news a little later, but before that, you know what you call a classic example of unfettered and convoluted administrative thinking. At one level you say you control yourself, you regulate yourself, you have a press council code, you have a program code under the cable television rules, but then you also say you're trying to have new categories universal, adults under seven years, above 13 years, above 16 years, parental guidance, how do you ensure parental guidance in today's day and age of smartphones? You know, so the whole thing is, according to you, extremely convoluted and you know, muddle headed to put it mildly. There are two aspects to what I've said there. Number one, the code itself is an exercise in bureaucratic language. It conceives of controls that are impossible to execute. Why use the term bureaucratic language is because left to himself, a bureaucrat would think in terms of ideals and this is the ideal situation, this is what it should be done. His proposals are tempered by the political class that has greater links with the masses and know what is possible and what is not. In this one, you look at the 5-fold divisions. The 5-fold divisions where age groups are given between 14 and 16 and this and that, it's bizarre. How do you see a movie or a serial now? Do you carry your birth certificate with you? Who would come and check that who's watching what? So you have left a biased desire and you can grimly say, this is a thing that is bugging. We broke and asked you how? You said parental guidance. I have hardly seen parents sort of guiding their youngsters, keeping them on their laps or something, unless they are really underage, really underage. So this parental guidance is another thing that has come from some Babu's mind, which means nothing. Can we talk a little bit about this whole grievance redressal system? About? The grievance redressal system. Addressing grievances real, imagined or regime sponsored. Now you're saying these grievance officers, I mean this entire system is all up to the Babu's. Everything is up to the Babu's. I mean they are going to decide what is good, what is bad, what can be shown, what cannot be shown and you yourself pointed out, far from being a soft-handed or a regulation with a right touch, far from it being what the government claims a minimal government interference, you're actually going to see heavy-handed regulations, where according to you, a such a system may enable a single, one single, aggrieved person to effectively finish off torpedo, you say, a digital media production. And so the so-called authorized officers will wield huge powers, powers of control and censorship. Understand the level of grievance disposal, there's a bell curve, there's a bell curve. Instead of going straight up in one, two, three, I'm using the term bell curve and you'll catch it. The first level of grievance is disposed by the companies or the firm's grievance officer. Now he's given 15 days time to respond. Now all we need to do is to send in 20 complaints. And in 20 different complaints generated by a computer, he would have to give 400 replies. So you can easily block that channel. On the 15th day, you say, I haven't got my reply. Therefore, I go on appeal. Where do you go on appeal? You go on appeal to a self-regulatory body that is chaired by a Supreme Court, a retired Supreme Court judge or a retired High Court judge. The gentleman sits with six advisors and they decide that this one is worth picking off. So the sent an advisory to the company this is not on, you need to abrogate, you need to do this. Or they fail to decide within the time limit. And then this super sensitive, a griff person goes to the third one. Now who's above a Supreme Court judge or a High Court judge? Well, joint secretaries are there, deputy secretaries are there. So the third level of body called government is actually a body, an inter-departmental committee, IDC, that is chaired by a person called authorized officer who's bound to be a hatchet man, bound to be a hatchet man of the government. This authorized officer sits in judgment with eight deputy secretaries. They all have to be junior. The bureaucracy is very prickly. If he's a joint secretary then I'll send deputy secretaries and directors. I can't send another joint secretary because he'd feel humiliated. So all these games go on. So we have now a joint secretary to the secretary to the government of India, sitting with eight deputy secretaries and directors deciding in effect the ruling by the Supreme Court judge. This is ridiculous. So I think we'll have to wait and watch and see how the Supreme Court interprets this. And many people believe that these rules are not just unconstitutional and illegal. But the kind, I mean people believe the way executive power and control has been extended, it's aimed at regulating online news media to the detriment of freedom of expression. And many, many believe that the way the whole rules have been put together and suddenly imposed on all of us without any prior consultation. The secretary who looks after two gigantic departments, a regime favorite obviously. He looks after information, also looks after education, two hatchet jobs. He said that no consultations are necessary. He looked very grim, he is always grim and he says that no consultations are necessary. No consultations are necessary. Even the height of arrogance, the height of arrogance. So he said no consultation and this was introduced without consultation and all rules, remember all rules have to lie on the table of parliament which means they are circulated among the members for a minimum period. This was also not followed. So it's a fact for some can go to court and say you have not followed the rule procedure. You are violating your own rule procedure. Okay. My last question to you, Johar Dam. It's clear that the present regime is upset with many digital or online news publishers because they've been raising questions. They've been raising uncomfortable questions. They've been putting out stories which the main so-called mainstream media has not been doing. Now we also have the government justifying what it's done. He said you don't, you know, a publisher of news and current affairs is not defined under the Information Technology Act. It excludes any paper. So the vagueness of the definition is such that you need to control these guys. Or at least that's the official justification for it. But what does it really mean in terms of freedom of expression? Article 191A of the Constitution of this country. I mean, it's not just the publisher's right to publish. What about the citizen's right to know? So this is really the bigger question that I would like you to sort of comment on and give us your concluding remarks on these new rules that have been put in. The digital media or digital online media as we call them have been the only OASIS in this otherwise very bleak scenario where the mainstream media has either been bullied, casual, blackmailed, overpowered, covered with advertisements and they've gone through a very hellish period of obedience. Now there are a couple of them like Hindu and telegraph that are still standing out but God knows how long they'll be able to do. Now having said that, it is an online media that have been reflecting news, analysis and others that the mainstream media or as Ravish calls it the Godi media, refrain from doing. This online media was one of the prime targets under this act. But first of all, it is completely doubtful whether you have any control over online media. That's the point on which the constitutionality of the whole thing on which wire and other group propeller they have gone to go. See, I started by saying you don't have constitutional power, you don't have legitimate sources of authority. That part, you see under Rule 15, the authorized officer whom I have called the Hatchet man, I've seen so many of my officers being picked up for services and then switching sides also after that. Rule 15, he can with approval of the Secretary, direct the publisher at any minute to delete, modify, block the relevant content and information generated, transmitted, received, stored. I mean, it's white sweeping bars. He can just tell you, you can't bring out this item about powers reward. You can't. That's all. That's all. All you need to do is to make out a case that this leads to a security problem which in turn generates a UFA problem and therefore leads to sedition and therefore leads to anti-national activities. And the merciful part is if you don't jail all of them, which has been happening. So these are draconian measures. These are dragon's teeth and these have to be, if I might, these have to be controlled right in the first stages of constitutionality. What the, many of the Babus in the government don't know or the ministers don't know that everything can be evaded by VPN. VPN, in the virtual private network, you can operate without getting into any radar whatsoever. So what material will be put on VPN is a matter that will be decided by the mass and the economic biography of the item. That's all. Thank you so much. Pani, the whole thing will go on the ground. All right. Thank you so much, Joharda for giving us your views and explaining in detail the implications of the information technology intermediary guidelines and digital media ethics code rules and why according to you, they are draconian and could sow the dragon seeds. I'm using your language of curbing dissenting voices in the media in this country.