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Regulation of digital platforms must not hurt freedom of expression: UNESCO

Is India’s approach to content regulation online in line with the priorities of this paper? And what implications does that have?

Governments must protect freedom of expression and right to information of users while regulating and requesting for removal of content from digital platforms, highlights the UNESCO in its draft ‘Guidance for regulating digital platforms: a multistakeholder approach’ report released in December 2022.

The guidance document will be open for stakeholder consultations at the UNESCO Global Conference on Internet for Trust: Regulating Digital Platforms for Information as a Public Good on 21-23 February, 2023 in Paris. The conference will be attended by ministers, regulators, judicial actors, the private sector and civil society as well as technical community members across countries in order to discuss UNESCO’s guidelines to “shape digital platform regulation”.

The guidance serves as a reference document for member states and other stakeholders, including digital platforms and civil society organisations, who are seeking to regulate and moderate online content. It aims to guide them in developing legislation and policies, which must be in-sync with the international human rights standards and “enhance the availability of accurate and reliable information in the public sphere”.

The guide calls for the independence of a regulatory system, which can vary across countries with some having one regulatory entity, while others having more than one. In any case, in line with the World Bank principles, the UNESCO suggests, “the key characteristic of the independent regulator model is decision-making independence”. This essentially means independence from prior approval of government authorities in decision-making. Further, “no entity other than a court or a pre-established appellate panel can overrule the regulator’s decisions”.

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The UNESCO outlines a list of important points to be checked by those governments seeking to draft legislations for regulating processes of online content moderation and curation. It notes that any such deliberations must not result in restricting freedom of expression and information as a public good.

As per the draft guidelines:

  1. Governments should “protect and respect users’ rights to freedom of expression, the right to information, equality and non-discrimination”.
  2. Any restrictions to content must be in line with the conditions laid under Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR). The article requires the restriction must have a legal basis, “a legitimate aim, and be necessary and proportional to the harm that is being restricted”.
  3. The restrictions must also be in accordance with Article 20 of the ICCPR, which is to prevent propaganda for war or advocacy of views that incite hatred and discrimination.
  4. The government must be transparent about content-removal or restriction requests made to the companies and “must be able to demonstrate how this is consistent with Article 19 of the ICCPR”.
  5. The authorities must also guarantee that “content removals are subjected to the adequate due process of law, including independent judicial review”.
  6. Governments must be avoid turning to moves such as internet shutdowns or impose other indirect restrictions if any alleged or potential breach of regulation is noted.
  7. Staff of companies must not be subjected to criminal penalties for alleged or potential breach of regulations, as this can have a “chilling effect on freedom of expression”.
  8. “Regulators with responsibilities in this area should be structured as independent regulators, with the proper accountability systems in place”.

With respect to content-takedown or blocking requests, the guidance suggests that governments must be “open, clear and specific about the type and volume of requests”. When it comes to national security concerns or preventing serious crimes, the regulators must have the space to examine the gravity of the situation and validity of content removal requests. This must be looked as from a human rights standard and the regulators must be able to share their findings and actions in the public domain. Further, UNESCO adds, “The regulator should also be able to scrutinize the scope of requests to ensure adequate balance between illegality and freedom of expression.”

Why does it matter?

The issue of online content regulation has been at the core of press freedom discussions in India recently. With the IT Rules 2021 in place, the Indian government has been tightening its control over what information stays on the internet. From content removal to blocking of accounts and websites, the state machinery has been triggering fears of unilateral censorship with no obligation to provide reasons for such moves. As international human rights bodies are stressing on principle-based perspective for regulation, it is important to comapre India’s approach at present.

What’s happening in India currently?

One is reminded of how these guidelines defining the role of authorities in upholding free flow of information while protecting people from online hate are in sharp contrast of what’s being seen in India. While there is not much conversation around content regulation in context of tackling harms and online hate-speech, a lot is highly indicative of direct attack on freedom of speech and expression via digital platforms.

PIB as a fact-checker:

In the latest news, India’s IT Ministry proposed an amendment to the IT Rules 2021 authorising the Press Information Bureau (PIB) to fact-check news reports and online content. It called for platforms to conduct pro-active monitoring of content to avoid such takedowns by the PIB, a government agency. Initially, PIB did not have powers to block content, but the new amendment, if passed, can enable this.

MediaNama has intensively reported on how the move impacts media freedom and on users’ right to information as it empowered a state agency to unilaterally restrict content by tagging them as ‘fake-news’ without due process to verify such claims.  With growing pressure by digital news media bodies in India, the ministry was compelled to hold on to the amendment for further consultations in February.

Blocking content, a go-to method:

The IT Rules 2021 give an upper hand to the government for content moderation. This is through provisions of appointing a Grievance Appellate Committee, which will be appointed by the government itself for hearing appeals to content moderation decisions taken by intermediaries. The provisions have been criticised for affecting rights of digital media and social media users as well as content creators and have been understood to be unconstitutional by internet rights experts. Additionally, reports on the upcoming Digital India bill also highlight greater control over the way social media will operate in India.

According to a recent report by Software Freedom Law Centre (SFLC), the government has blocked as many as 55,580 website, URLs, applications, social media posts and accounts between January 2015 and September 2022, MediaNama reported. A major chunk of these sources was blocked for violating Section 69A of the Information Technology Act 2000, copyright infringement and for child sexual abuse material, obscenity and pornography.

However, the reasons provided for such takedowns remain vague. SFLC’s RTIs inquiring about the impact of the blocking orders by IT Ministry remained unanswered, whereas the broadcasting ministry cited national security and information propaganda as reasons for blocking content. Such lack of transparency and curtailment of constitutional freedoms indicate a rocky road for India ahead with respect to regulation of digital platforms and online content.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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Curious about privacy, surveillance developments and the intersection of technology with education, caste and welfare rights.

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