Yesterday’s draconian ‘Rowlatt Act’ is today’s ‘Media Law’

Why does the Act not spell out exemption for individuals involved in journalistic work and media organisations explicitly in Section 17? Draft Rule 8 mandates deletion of personal data three years after the last user interaction and requires a 48-hour pre-erasure warning. Given the historical value of news archives, will MEITY confirm that journalistic archives fall under the “research, archiving and statistical purposes” exemption in Section 17?

One of the rules under the Data Act calls for removal of ‘personal data’ within three years. ‘Erasure’ is the new terminology, a component of new media.

On second thoughts, this is yet another conflict between freedom of speech and ‘privacy’. In a historic judgment, the Supreme Court found it as a significant part in Article 21. And under this jurisprudence, a new enactment is made. This is a more draconian a law than the pre-Independence law like Rowlatt Act 1919, under which an arrest and detention of individuals could be made without trial for up to two years. It seemingly appears like a continuation of the British Raj.

The Mahatma Gandhi-led Rowlatt Satyagraha against the oppressive measures fueled anti-British sentiment and culminated in the Jallianwala Bagh massacre on April 13.

After reading from this writer’s column, former Director of CBI M Nageswara Rao said “I did not expect that the seriousness of DATA Act was of a bigger magnitude than the Rowlatt Satyagraha”.

Both the Press Club of India (PCI) and the Indian Women Press Corps (IWPC) pointed out 35 ‘threats’ called ‘questions’ to the Ministry of Electronics and Information Technology (MeiTy) over their serious concerns about the Digital Personal Data Privacy (DPDP) Act. 2023. They felt that the rules were more intense than the ‘Act’, the Justice Srikrishna report, violating the SC judgment and privacy.

Scribes need to study fresh ‘erasure’ rules:

Journalistic work at times requires sharing and storing documents, including those containing personal information, across national borders and jurisdictions. At times, such documents are provided by whistleblowers and therefore require measures to ensure confidentiality, including in the storage and processing of such information which may entail the use of secure servers located outside India’s jurisdiction. Various sections place restrictions on transfer of personal data, including Section 16 of the DPDP Act.

Pre-erasure warning!

Journalists’ bodies pointed out the criminal deadline, which the Ministry did not answer-

Why does the Act not spell out exemption for individuals involved in journalistic work and media organisations explicitly in Section 17? Draft Rule 8 mandates deletion of personal data three years after the last user interaction and also requires a 48-hour pre-erasure warning. Given the historical value of news archives, will MEITY confirm that journalistic archives fall under the “research, archiving and statistical purposes” exemption in Section 17?

Where Draft Rule 15 treats continued non-use as a trigger for deletion, people involved in journalistic activity or media organisations obtain a categorical assurance that source-related files kept solely for public-interest follow-ups will not be forced into erasure schedules?

Impact on the profession:

Will MEITY invoke its rule-making power under Section 40 to recognise a limited exception for bona-fide newsgathering, or must journalists rely solely on the narrow “certain legitimate uses” in Section 7?

Meanwhile, some more serious issues need to be addressed. Do individuals involved in journalistic work and organisations need to seek prior consent from any person they report on, or whose “personal data” such as identification details are contained in a press report?

New Censorship and mandated consent:

The DPDP Act requires clear, unambiguous consent for processing personal data, a requirement that critics argue is incompatible with the nature of journalism. It means that ministers, public leaders should give content. Journalists fear they may have to obtain consent from public officials before reporting on details like their finances or property, which is neither practical nor in the public interest.

Section 10 of the DATA Act gives the Central government discretionary powers to notify any data fiduciary as “significant data fiduciary”. It means a person involved in journalistic work, or a media organisation, handling a large volume of data, which contains personal data, can be notified as a “significant data fiduciary”. Under which provision of the Act will exemption be given?

Mandatory consent could (read surely) make it difficult to cover breaking stories like riots or corruption scandals and could allow subjects of news stories to request the erasure of content, effectively functioning as censorship.

Unlike data protection laws in many other countries, the DPDP Act does not provide a specific exemption for journalistic purposes, despite being recommended in previous drafts.

Risk to freedom of press

The DATA Act’s Section 10 allows notification of any Data Fiduciary based on “risk to electoral democracy, public order or the security of the State”. The question is: What objective criteria will be applied to ensure that large or critical media houses are not placed under onerous Significant Data Fiduciary compliance merely for publishing investigative stories?

Draft Rule 22(1) allows the Government, after obtaining information, to direct that “the Data Fiduciary shall not disclose to any person the fact that such a direction has been received”. How will MEITY reconcile these secret orders with the open-justice principle and the press’s right to report on state action?

Privacy versus online media rights:

Reporting whether for print, broadcast or online media requires several details such as name, age, gender, location, profession, caste, class, income are required to authenticate a story. Without these details, the story will be incomplete, vague, and likely to be rejected. Much of this information is set to fall within the definition of “personal data”. Blanking out this type of data will lead to a hollowing out of stories, particularly field reportage and will adversely affect the media. What are the specific clauses in the act that provide exemption for publishing such details as part of regular journalistic work?

Sad story of developing news reports:

In the case of a developing news story such as coverage of a riot, a terror attack, or a natural disaster and spontaneous street interviews is the person involved in journalistic activity (data fiduciary) required to go through the elaborate process of obtaining consent from the subjects (data principal) according to the provisions and clauses mentioned under Section 5 and Section 6 before reporting the story?

In addition to DATA Act, the draft rules also create serious problems. They, along with ‘definitions’, will impose pre-censorship reminding us of the Emergency days and MISA.

Draft Rule 3 demands that the Data Fiduciary’s notice be “in clear and plain language” and given before processing. How can live spot reporting, spontaneous street interviews, undercover reporting, etc., comply, and will MEITY clarify that journalistic collection in the public interest need not issue advance notices?

As regards a scam or instance of corruption perpetuated by a minister or bureaucrat or any public servant, is the person involved in journalistic activity, or the media organisation, required to take “informed consent” from the accused in the form and format laid out in the Act, specifying the purpose for which the information has been collected, before publishing the article?

Another pre-censorship is in the offing! In cases of custodial torture or death, is a reporter, or a media organisation, required to obtain consent in the prescribed format as defined under Section 6 of DPDPA from the accused police official before naming her, or mentioning the place of posting or where the incident took place, or any other information that makes the accused identifiable before publishing the article?

Journalists, and those from TV, website and social media may have to treat these laws and rules as an undeclared emergency.

(The writer is a former Central Information Commissioner, and presently Professor, School of Law, Mahindra University, Hyderabad)