New data law, a barrier to journalistic free speech (GS Paper 2, Polity & Governance)
Context
In the Digital Personal Data Protection Act, 2023, the removal of ‘journalistic exemption’ highlights the need for more robust public consultation.
About
In August 2023, India got its first comprehensive data protection law, the Digital Personal Data Protection (DPDP) Act, 2023.
The law is largely based on users giving consent for the processing of their personal data.
It provides basic rights such as access to and erasure of data, places some obligations on companies, and establishes a complaints body for grievance redress. However, the law might have an invisible impact on journalistic free speech.
An impediment
Typically, data protection laws exempt journalistic activities from privacy obligations such as notifying users and taking their consent before using their personal data.
Three previous drafts of the DPDP Act had exemptions for journalistic activities, but the final law withdrew such an exemption.
The Editors Guild of India also pointed to this risk and in a letter to the government, requested that journalistic activities be exempted from the DPDP Act.
It would impact a journalist as when all information about an MP is their ‘personal data’, which is data protected under the DPDP Act and consequently, any journalist who wishes to use this data will have to get their consent before publishing the story.
Even after publication, the MP can exercise their right to erasure and request journalists to delete such stories.
Further, the DPDP Act empowers the government to call for information from any data processor in India.
Depending on how this provision is interpreted and applied, this may impact the confidentiality that journalists must maintain for their sources and research documents.
Taken together, this need for journalists to get consent before publishing their story, the potential for the subject to rely on the right to erasure to have the story deleted, and the power of the government to call for information would likely impede a journalist’s ability to discharge their role as the fourth estate — of holding the state accountable.
Suggestions
One of the primary ways to get feedback on a law is to institute an ‘open and transparent’ public consultation model.
Although the Indian government released three separate drafts of the data protection law for public consultation, none of the comments received on the drafts has ever been released in the public domain.
This impedes the ability of citizens to understand what different stakeholders were saying and who was finally heard in the final formulation of the law.
The government has also conducted invite-only town halls to gather feedback on drafts of the DPDP Act.
And, no clarification was provided by the government for its withdrawal.
Unfortunately, these consultations and town halls are often not conducive to enable open debate and deliberation on the proposed law and its provisions.
Way forward
In addition to enabling an open and transparent consultation process, the government can swiftly remedy this problem via rules under the DPDP Act.
Although an exemption for journalistic work should form part of the core text of the law, the government must use this rule to exempt journalistic entities, including citizen journalists, from any obligations under the DPDP Act.
This will ensure that the DPDP Act does not have negative consequences on journalistic free speech in India.
