New Delhi: Special Rapporteurs from the United Nations have written to India noting that the government’s new IT Rules go against international human rights norms in their current form. India’s response contends that such concerns are “misplaced” and that the country’s democratic structure remains unaffected by the Rules.

The eight-page letter was uploaded on June 11 and is written by Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Clement Nyaletsossi Voule, Special Rapporteur on the rights to freedom of peaceful assembly and of association, and Joseph Cannataci, Special Rapporteur on the right to privacy.

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, the letter argues, do not meet the requirements of international law and standards related to the rights to privacy and freedom of expression, as protected by the International Covenant on Civil and Political Rights, which India acceded to in 1979.

The Rules ask for big social media companies to take down unlawful content within a specific time-frame of being served either a court order or notice by an appropriate government agency, require digital media and OTT platforms to subscribe to a three-part system of regulation and are arguably the biggest shake-up in the technology regulation space in the last decade. Further details on what they entail can be found here.

The Special Rapporteurs expressed “serious concern” that the obligations attached to the Rules may result in the “limiting or infringement of a wide range of human rights.”The experts advised that the Rules be closely scrutinised and the Centre undertake wide consultations with relevant stakeholders.

In its response to the letter, India has noted that the Union IT and I&B ministries reportedly “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.”

Finally, India says, an “inter-ministerial meeting” discussed in detail all comments before finalising the Rules.However, The Wire‘s own Right to Information request for details on how the rules were drafted were turned down by the I&B ministry – in violation of the RTI Act.

The limited information it did provide stands in stark contrast to the claim that the rules had been issued after “broad consultation” with stakeholders, individuals and others. The Wire‘s Dheeraj Mishra had noted in his report:

“…[T]he ministry in its reply was able to mention just two seminars and one meeting in the name of deliberations related to the said rules, out of which two are connected to OTT platforms. The details of another seminar are not available in public. There is no mention of any meeting related to the digital news media, which has also been made the target of the new IT rules.”

Wording

With significant attention to the details of the IT Rules, the letter notes that under international law, restrictions to freedom of opinion and expression can only be enforced in a manner which enables individuals to regulate conduct accordingly. The existing Rules have terms like “racially or ethnically objectionable” or “threatens the unity…of India” which the experts say are not rigorous and fall short of international human rights law requirements.

Sections that have to do with removal of content that may mislead or cause “any” injury to a person, say the experts, are excessively broad and lack precision. Precise definitions, “…will ensure that the new rules do not have a chilling effect on independent media reporting.”

The letter cites the Supreme Court’s Shreya Singhal judgment of 2015 and further states that obligations on private companies to rapidly remove content generated by users, will result in a situation where the intermediaries (like social media sites) will over-comply with takedown requests or bring digital-recognition systems to remove 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 also mentions the Indian Ministry of Electronics and Information Technology’s direction to Twitter to shut down over 1,000 accounts in early 2021, during the farmers’ protests, as an example of how these Rules may “provide 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.”

The letter also notes that the severity of the penalties in the Rules “incentivises the restriction of content” and could be used to overwhelm grievance redressal mechanisms put in place in place by social media intermediaries in compliance with the Rules.This latter concern, says the government, is “misplaced, exaggerated, and disingenuous and shows lack of willingness to address grievances of the users of these media platforms while using their data to earn revenues.” 

However, there is no mention in India’s reply of how such an impasse will be solved if too many complaints are received by grievance officers appointed by a social media intermediary.In its reply, India has sought to detail the Rules pertaining to social media intermediaries, without specifically addressing the above concerns of restriction and misuse of government authority.

Notably, a few days ago, Twitter – which has taken its time to comply with the Rules – reportedly removed the accounts of Punjabi singer JazzyB, hip-hop artist L-Fresh the Lion and two others in response to a legal demand in India.

In June itself, political cartoonist Manjul received an email from Twitter stating that the authorities in India believe the content associated with his Twitter account, @MANJULtoons, “violates the law(s) of India” and has requested it to take action on this matter.

Right to privacy

The letter also speaks of Article 17 of the ICCPR, which deals with arbitrary or unlawful interference with privacy, to highlight that these rights are protected in the digital age, especially for journalists, by tools like encryption and the guarantee of anonymity.

“We are seriously concerned that Section 4 may compromise the right to privacy of every Internet user…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,” the letter says.

The section also establishes “a general monitoring obligation”, the letter notes.The experts also foresee that the provisions will affect not just “significant social media intermediary” sites but also “potentially to any intermediary” – a concern bolstered by Section 6 of the Rules.

“Such an unfettered discretion conferred to the executive authorities poses serious risks for the freedom of expression and the right of privacy of every Internet user,” the letter notes.India has said in its reply that on the “traceability of the first originator” of information, the IT Rules seek “only limited” information.

However, in describing situations where this limited information is sought, India’s reply resorts to a broad, subjective and unspecific phrasing of apparent offences which can well be construed to serve the purpose of an executive:

“Only when a message already in public circulation is giving rise to violence, impinging on the unity and integrity of India, depicting a woman in a bad light, or sexual abuse of a child and when no other intrusive options are working, only then the significant social media intermediary will be required to disclose as to who started the message,” India notes.

Media freedom

The letter pays particular attention to the implication of the Rules on media freedom. On this, the UN Rapporteurs say: 

“We are seriously concerned that such broad powers given to the executive authorities, without judicial review, is likely to unduly restrict the free flow of information, which is protected by Article 19 (2) of the ICCPR.

The letter expresses worry that the Rules give a government agency extensive powers to order the blocking of content without safeguards.Commenting sharply on how extreme and disproportionate a measure like news website blocking is, the letter notes that such action often restricts access to “perfectly legitimate content.”

In the section of India’s reply that deals with digital media, there is mention of the need to level the playing field between print and television (i.e. offline) and digital media.However, as The Wire has noted before and as India’s reply mentions, the Rules allows government oversight on digital news platforms, unlike provisions of the Press Council Act, 1978, which envisages regulation of newspapers without government interference.

The UN experts also slam “broadly or vaguely worded provisions that may be used to restrict the freedom of expressions [and] are not only incompatible with the requirement of legality, but risk that the scope of the restrictions are broader than necessary to achieve the legal objective.” This may result in arbitrary targeting of government critics or those who express ideas that are “unpopular, controversial or minority.”

“In fact, we are seriously concerned that such expansive definitions could be interpreted to unduly restrict the exchange of ideas and information online, which would in turn jeopardise the independence of India’s digital news media.”

Digital news outlets, including The Wire, The News Minute, LiveLaw, Pratidhvani and The Quint, have petitioned various high courts across the country against the IT Rules. Read more on the legal reasons here.

In its conclusion, the letter scathingly notes that “as a global leader in technology innovation, India has the potential to develop a legislation that can place it at the forefront of efforts to protect digital rights. However, the substantially broadened scope of the Rules is likely to do just the opposite.”