In a letter to the Indian government, the UN Special Rapporteurs on freedom of expression, privacy and right of the peaceful assembly said that the recently notified IT Rules 2021 “do not appear to meet the requirements of international law and standards related to the rights to privacy and to freedom of opinion and expression.”
The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 put in place sweeping regulations on social media companies, news websites and streaming services. The rapporteurs expressed “serious concern that some parts of their due diligence obligations may result in the limiting or infringement of a wide range of human rights.”
Both the rapporteur’s letter and the Indian government’s response are dated June 11, but appear to have only been made public over the weekend.
Government shies away from addressing specific concerns
The Indian government replied to the rapporteurs’ response with an information note on the history of the IT Rules and a summary of its provisions. Here’s what the rapporteurs said, and the government’s response, if any.
Consultation and broad scope
- Urge relook with stakeholder consultation: The letter at first urged the government to withdraw portions of the Rules and take a relook after stakeholder consultations. “Given the wide-ranging impact of social intermediary legislation on a range of human rights, they should be closely scrutinized and therefore, we urge your Excellency’s Government to undertaken wide consultations with all relevant stakeholders,” the letter said.
- Government’s response: “The Permanent Mission of India would […] like to inform that the Ministry of Electronics and Information Technology and Ministry of Information and Broadcasting undertook broad consultations in 2018 with various stakeholders, including individuals, civil society, industry association and organizations and invited public comments to prepare the draft Rules. Thereafter an inter-ministerial meeting had discussed in detail the comments received in detail and, accordingly, the Rules were finalized,” the government said in its response. It’s worth noting that the 2018 draft was significantly narrower in scope than the notified Rules, with provisions added for regulation of streaming services and news with closed consultations.
- Broad scope of applicability: The definitions of entities make it such that the Rules apply to many players, the rapporteurs pointed out, including “traditional media, as well as small independent media outlets, social media, ISPs, web hosts, email hosts, amongst others.”
- Government’s response: The government did not appear to respond to this specific observation.
- Prohibitions too vague: “Under international law, restrictions [on freedom of expression] must be provided by law and be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. In this regard, terms such as content that is “racially or ethnically objectionable”, “harmful to child”, “impersonates another person”, “threatens the unity… of India,” “is patently false and untrue”, “is written or published with the intent to mislead or harass a person […] to cause any injury to any person”, are overly broad and lack sufficiently clear definitions and may lead to arbitrary application,” the letter said.
- Government’s response: The government did not appear to directly address this concern. “The concerns alleging potential implications for freedom of expression that the new IT Rules will entail, is highly misplaced,” it had said in one point in the press release, attaching an earlier press release that summarized the Rules.
Fake news and chilling effect
- Fake news: The rapporteur on freedom of expression, Irene Khan, noted that “false and untrue information is protected under international human rights law,” and that “general prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news,” are incompatible with international standards for restrictions on freedom of expression, and” should be abolished”. The Rules require takedown of identified content that is “is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.”
- Government’s response: The government did not appear to respond directly to this observation. “India’s democratic credentials are well recognized. The right to freedom of speech and expression in guaranteed under the Indian Constitution. The independent judiciary and a robust media are part of India’s democratic structure,” it said in the information note attached to its response.
- Social media companies may automatically remove legitimate content: The letter said that the letter is “In particular, we worry that intermediaries will over-comply with takedown requests to limit their liability, or will develop digital recognition-based content removal systems or automated tools to restrict content. As emphasized by our predecessors, these techniques are unlikely to accurately evaluate cultural contexts and identify illegitimate content. We are worried that the short deadlines, coupled with the aforementioned criminal penalties, could lead service providers to remove legitimate expression as a precaution to avoid sanctions,” the letter said. “We note as well the judgement of the Supreme Court in the case Shreya Singhal vs. Union of India, of 24 March 2015, in which the Supreme Court clarified that content restrictions may only come from a reasoned order from a judicial, administrative, or government body,” the letter said.
- Government’s response: The government did not appear to address this concern. However, it said that “The concern that the Rules may be misused deliberately to make a large number of complaints so as to overwhelm the grievance redressal mechanisms created by social media platforms is also misplaced, exaggerated and disingenuous and shows lack of willingness to address the grievances of the users of these media platforms while using their data to earn revenues.”
- Censorship of journalists: “Noting that the Ministry of Electronics and Information Technology directed Twitter to shut down over 1,000 accounts under Section 69A of the Information Technology Act, on 31 January 2021, on grounds that these accounts were spreading misinformation about farmers’ protests, we worry that the new Rules may provide the authorities with the power to censor journalists who expose information of public interest and individuals who report on human rights violations in an effort to hold the government accountable. We would like to emphasize that the respect for diversity, pluralism and independent information is a necessary condition for the functioning of any democratic society,” the letter said.
- Government’s response: The government did not address this specific concern beyond its general statement on freedom of speech in India covered above.
- Criminal liability could lead to chilling of speech: “[W]e are seriously concerned about the ability foreseen in the Rules to subject individual employees [of intermediaries] to criminal liability, given the availability of less punitive measures. The severity of the envisaged penalties incentivizes the restriction of content and is likely to have a chilling effect on freedom of expression,” the letter said.
- Government’s response: The government did not appear to address the criminal liability point in its response. Rakesh Maheshwari, Senior Director and Group Coordinator of Cyber Law & eSecurity at the Ministry of Electronics and Information Technology, said at a MediaNama event in April that criminal liability is provided for at the level of the IT Act, and that is why that got carried forward to the Rules, and that “if an extant law is being violated, you become vulnerable to that, but once again, that’s not our intent.”
- Traceability requirement may compromise all users’ privacy: “We are seriously concerned that Section 4 may compromise the right to privacy of every Internet user. We are notably concerned by the ability of executive authorities to issue orders to access to user data and restrict content, which seems to take place outside of any judicial oversight mechanism that would hold authorities accountable. Ineffective procedural safeguards and oversight can only contribute to limiting opportunities for accountability, which in turn can generate further human rights violations,” the letter said.
- Government’s response: “The Government of India fully recognises and respects the right of privacy, as pronounced by the Supreme Court of India in [the] K.S. Puttusamy case. Privacy is the core element of an individual’s existence and, in light of this, the new IT Rules seeks information only on a message that is already in circulation that resulted in an offence. The Rules have framed in exercise of the statutory powers of the IT Act, fully taking into account the principles of reasonableness and proportionality,” the government said.
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