Journalists argue that the Digital Personal Data Protection (DPDP) Act as it stands, could severely impact press freedom by criminalising routine reporting, requiring consent for news coverage, and threatening source confidentiality. The ill consequences are explained by Justice A P Shah.

The fear of laws being used to suppress free speech—a phenomenon known as the “chilling effect”—is a growing global concern. Authorities and powerful private entities may weaponize vague or disproportionate laws to intimidate journalists, activists, and ordinary citizens who express critical or dissenting views.

It is weaponizing the law. It can be a more constant, haunting fear that is always present, even if the specific event isn’t around the corner but near about. Critics fear the government could use the law’s vague provisions to selectively target media organizations that are critical, sometimes even penal provisions of Act, especially the DPDP Act, 2023.

In 2023, amendments to India’s IT rules granting the government power to establish fact-checking units to censor online content were struck down by a court. Critics argued the rule gave the government excessive power to control speech related to its affairs.

Fear of legal repercussions causes individuals to self-censor and refrain from expressing legitimate views, stifling public debate and the “marketplace of ideas” essential for a healthy democracy. The intimidation of the press and civil society by weaponizing the law weakens public scrutiny and accountability, potentially allowing governments to become unaccountable to their citizens and mark erosion of human rights. The suppression of free expression often facilitates further human rights abuses by removing one of the most effective tools for exposing wrongdoing.

The Act allows the central government to exempt its agencies from key provisions in the interest of India’s sovereignty, security, and public order. Critics contend these exemptions are broad, vague, and lack safeguards, potentially enabling mass state surveillance.

While celebrating two decades of Right to Information (RTI), the fear of abuse of freedom of speech and expression when rules are implemented in Section 44(3) of the DPDP Act, as especially section 44(3) amended Section 8(1) (j) of the RTI Act. The amendment removes this public interest test, potentially preventing information about public servants involved in wrongdoing from being disclosed, thereby impacting the Data law.

Journalists argue that the Digital Personal Data Protection (DPDP) Act as it stands, could severely impact press freedom by criminalising routine reporting, requiring consent for news coverage, and threatening source confidentiality. The ill consequences are explained by Justice A P Shah.

Significant Data Fiduciary (SDF) status: Media organizations that handle large datasets, like electoral rolls, could be designated as “Significant Data Fiduciaries,” facing increased regulatory scrutiny and burdens. Problem is why should the Government ignore ‘exemption to expression’? Reasons are:

In the 2018, 2019, and 2021 versions of the data protection bill, exemptions were provided for journalistic purposes. The Justice Srikrishna Committee Report on Data Protection (2018) and the 2012 Group of Experts on Privacy headed by Justice AP Shah had also recommended exemptions for journalistic purposes. Why was the journalistic exemption removed from the final version of the DPDP Bill, which was enacted in August 2023?

If in the opinion of the ministry, no explicit exemption for journalistic purposes is required as the law does not to apply to journalistic work, which are the specific sections of the DPDP Act, 2023, that safeguard rights of entities and individuals and exempt them from obligations of data fiduciary if they are processing personal information for journalistic purposes? Please provide a list of such sections and an explanation on how they protect journalistic work.

Since the enactment of the RTI Act in 2005, information accessed under the law has become a crucial source for journalists and media. There are innumerable examples of important journalistic work in public interest which are based on records accessed under the RTI Act. Why was Section 8(1)(j) of the RTI Act amended through the DPDP Act to expand the scope of information exempt from disclosure?

Similarly, if in the opinion of the ministry, the right to access information under the RTI Act remains unchanged despite the changes made to Section 8(1)(j) through the DPDP Act because of the existence of Section 8(2) of the RTI Act, why was the RTI Act amended?

Data Act of Section 44(3) substitutes RTI Act Section 8(1)(j), making all personal data exempt from disclosure without the earlier public-interest override (see explanatory note). How will MEITY prevent this from hollowing out journalists’ access to corruption-related records?

Meanwhile, journalists’ bodies show two serious problems in S 7: It states that personal data of a “data principal” can be used only for the “specified purpose”. In such a case, how do these scenarios pan out for journalists and media organisations?

Suppose a person involved in journalistic activity is working on a story on denial of ration cards to people of a certain region due to mismatch with Aadhaar data and collects personal data of the affected people such as name, age, and place for identifying the extent of the problems. It raises some questions:

Is such journalist required to take “informed consent” from each individual for processing this raw data and using it in a coherent tabular format in an article to highlight the systemic problem in the public interest?

Second critical situation:

Suppose, a few months down the line, it emerges that starvation deaths have occurred in the same region due to lack of access to food and the previously collected data is used to establish a causal link between the deaths and problems with Aadhaar data, is the person involved in journalistic activity or the media organisation required to obtain fresh consent?

44(3) of DPDP killed RTI:

The Right to Information Act 2005, Section 8(1) (j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest is itself can protect the RTI without any recent amendments by the Parliament. Unfortunately, Section 44(3) of Data law substitutes RTI Act Section 8(1)(j), making all personal data exempt from disclosure without the earlier public-interest override. How will MEITY prevent this from hollowing out journalists’ access to corruption-related records?

Journalistic work at times requires sharing and storing of documents, including those containing personal information, across national borders and jurisdictions. At times, such documents are provided by whistle-blowers 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 Indian jurisdiction. Various sections place restrictions on transfer of personal data including Section 16 of the DPDP Act. How will processing and storage of information outside India for journalistic purposes be protected?

The memorandum calls for journalists and media outlets to be excluded from the powers under Sections 28 and 36 that allow government agencies to access sensitive or confidential journalistic material

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