New data law, a barrier to journalistic free speech 

India's digital landscape took a major step forward in August 2023 with the enactment of its first comprehensive data protection law, the Digital Personal Data Protection (DPDP) Act, 2023. This Act aims to empower individuals with control over their personal data and establish clear guidelines for how organizations handle it.

Key Provisions of the DPDP Act

The DPDP Act places user consent at the heart of data processing. This means organizations must obtain an individual's explicit consent before collecting, using, or disclosing their personal data. The Act empowers individuals with several fundamental rights regarding their personal data. These rights include:

• Right to Access: Individuals can request access to their personal data held by an organization.
• Right to Rectification: They can request corrections to any inaccuracies in their data.
• Right to Erasure (Right to be Forgotten) Under certain circumstances, individuals can request the deletion of their personal data.

The Act outlines specific responsibilities for organisations that handle personal data. These obligations include

• Implementing robust data security measures to safeguard personal data from unauthorized access or misuse.
• Notifying users in the event of a data breach.
• Appointing a Data Protection Officer to oversee compliance with the Act.

Potential Impact on Journalism

• One of the key debates surrounding the DPDP Act concerns its potential impact on journalistic freedom. The Act, in its current form, does not explicitly exempt journalistic activities from its data privacy requirements. Traditionally, data protection laws around the world recognize the importance of journalistic exceptions. This allows journalists to collect and use personal data for investigative purposes without obtaining explicit consent, as long as they adhere to ethical journalistic practices.
• The Editors Guild of India, a leading media rights body, has expressed concerns about the lack of such an exemption. They argue that the requirement for user consent could create roadblocks for investigative journalism, making it difficult for journalists to gather crucial information from whistleblowers or individuals fearful of retaliation.

2. Privacy Implications for Journalistic Free Speech

Privacy and journalistic free speech are closely intertwined, particularly concerning the Digital Personal Data Protection (DPDP) Act, 2023. This legislation introduces significant challenges for journalists in accessing and reporting on certain types of information.

Challenges Faced by Journalists

• Under the DPDP Act, personal data, including information about public figures like Members of Parliament (MPs), is protected. Journalists often rely on such data to investigate and report on matters of public interest, such as the performance and conduct of MPs. However, the Act mandates that journalists obtain consent from individuals, including MPs, before using their personal data in reporting. This requirement poses a substantial hurdle for journalists seeking to gather and publish critical information.
• Even after publication, the DPDP Act grants individuals, including MPs, the right to request the erasure of their personal data from journalistic reports. This provision enables subjects of journalistic scrutiny to potentially suppress unfavourable or critical coverage by compelling journalists to delete published stories.
• Additionally, the DPDP Act empowers the government to demand information from any data processor in India. This provision raises concerns about the confidentiality of journalistic sources and research documents. Journalists rely on the protection of their sources to uncover and report on matters of public interest without fear of reprisal or censorship.

Implications for Journalistic Free Speech

The cumulative effect of these provisions is likely to impede journalists' ability to fulfil their role as the fourth estate holding the state accountable and safeguarding democratic principles. The requirement to obtain consent, the potential for erasure requests, and government authority to access information may hinder investigative journalism and limit public access to crucial information.

Uncertain Rationale for Removal of Exemption

The removal of exemptions for journalistic activities in subsequent drafts of the DPDP Act raises questions about the government's motives and intentions. Previous drafts, including those by expert committees and parliamentary bodies, recognised the importance of safeguarding journalistic freedom. However, the absence of clear explanations for the removal of exemptions in later drafts underscores the need for transparency and accountability in the legislative process.

Robust and Transparent Public Consultation

• The removal of journalistic exemptions from the Digital Personal Data Protection (DPDP) Act, 2023 highlights the necessity for a more transparent and inclusive public consultation process. Transparent consultations ensure that diverse perspectives are considered in the formulation of laws, enhancing public trust and accountability.
• Instituting an 'open and transparent' public consultation model is crucial for soliciting feedback on proposed legislation. Such a model allows for broad participation from various stakeholders, including citizens, civil society organizations, and industry representatives. Open consultations facilitate the exchange of ideas and promote accountability in decision-making.

Challenges in Current Consultation Practices

• Despite the Indian government releasing multiple drafts of the data protection law for public consultation, the comments received on these drafts have not been made available to the public. This lack of transparency hinders citizens' ability to understand the perspectives of different stakeholders and the factors influencing the final version of the law.
• Consultations conducted through invite-only town halls may exclude voices that are critical or dissenting. These closed-door discussions may not provide an inclusive platform for open debate and deliberation on proposed laws and their implications.
• The withdrawal of exemptions for journalistic activities from subsequent drafts of the DPDP Act was not discussed in public consultations or town halls. Furthermore, the government has not provided clarification regarding the rationale behind this decision, leading to ambiguity and concerns about the legislative process.

Need for Reform

• Releasing comments received during public consultations on legislative drafts would enhance transparency and accountability in the lawmaking process. Citizens should have access to information about the feedback provided by various stakeholders and how it was considered in the final formulation of the law.
• The government should strive to create inclusive platforms for public consultations that encourage open debate and diverse perspectives. Allowing for meaningful engagement from stakeholders ensures that the interests of all segments of society are adequately represented.
• The government must provide clear explanations for significant changes made to legislative drafts, addressing concerns raised during consultations. Transparent communication fosters trust and confidence in the legislative process.

4. Proposed Legal Solutions to Safeguard Journalistic Free Speech

Utilising Rule-Making Authority

• The government can address the issue promptly by leveraging its rule-making authority under the Digital Personal Data Protection (DPDP) Act. This authority grants the central government the power to exempt certain data processors or classes of data processors from specific provisions of the law.
• While incorporating an exemption for journalistic activities directly into the core text of the law would be ideal, utilizing the rule-making provision offers a quicker resolution. The government should consider issuing a rule to exempt journalistic entities, including citizen journalists, from the obligations imposed by the DPDP Act.

Ensuring Journalistic Free Speech

• Granting exemptions to journalistic entities under the DPDP Act is essential to safeguarding journalistic free speech in India. By exempting journalists from onerous privacy obligations, such as obtaining consent for data usage, the government can uphold the principles of press freedom and media independence.
• Providing exemptions for journalistic activities ensures that journalists can continue to conduct thorough investigations and report on matters of public interest without undue interference or constraints. This preserves the vital role of journalism in holding the government and public officials accountable.
• The government must adopt an inclusive approach when formulating rules under the DPDP Act. Engaging with journalists, media organizations, and civil society stakeholders in the rule-making process can help ensure that the exemptions adequately address the concerns of the journalistic community.