On 11 June, the United Nations Special Rapporteur on Right to Freedom of Speech and Expression addressed a strongly-worded letter to the Indian government criticising certain provisions of the newly enacted Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
India’s Permanent Commission to the United Nations immediately responded to the Special Rapporteur’s letter by expressing “strong objection” to the observations made therein. India’s response highlighted the protection of freedom of speech and expression as a fundamental right in the Indian Constitution, as a defence to the scathing criticism of newly enacted IT Rules.
"“Ministries undertook broad consultations in 2018 with various stakeholders – including individuals, civil society, industry associations and organisations – and invited public comments to prepare the draft rules. Thereafter an inter-ministerial meeting discussed in detail the comments received and, accordingly, the rules were finalised.”" - India’s permanent commission to the United Nations
India’s response to the serious concerns raised by the Special Rapporteur lacks substance. It fails to engage with and respond to specific observations of the Special Rapporteur on how certain provisions of the new IT Rules are completely antithetical to India’s own obligations under International Human Rights Law.
Citing India’s constitutional provision on freedom of speech and expression doesn’t counter the serious allegations on systematic dilution of digital free speech, of both the intermediaries and the individuals. Rather, it exposes how despite having such constitutional protection, the Indian government continues to ignore it while legislating new rules concerning free speech.
Problematic Provisions of New IT Rules
The Special Rapporteur has flagged specific provisions of the new IT Rules, which in their language and possible consequences, pose a serious threat to freedoms guaranteed under International Human Rights Law. Some of these provisions are:
Section 3(1)(d): Provides ambiguous and broad grounds such as “morality”, “decency”, and “defamation” to classify speech as “unlawful”
Section 3(1)(j): An intermediary must comply within 72 hours with government orders to “provide information under its control or possession”.
Section 3(2): Grievance redressal mechanism
Section 4: Additional requirements for Significant Social Media Intermediaries (SSMIs). They have to appoint a Chief Compliance Officer who can be held liable for non-observance of due diligence.
Section 4(4): SSMIs providing services primarily in the nature of messaging shall enable the identification of the first originator of a particular message.
Section 6: The Ministry may by order, for reasons to be recorded in writing, require any intermediary, which is not a significant social media intermediary, to comply with all or any of [its] obligations.
New IT Rules Violate International Law on Freedom of Speech
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) provides for freedom of opinion, and freedom to seek, receive and impart any information without interference. Moreover, in July 2012, the Human Rights Council had adopted a resolution affirming that the rights guaranteed to persons “offline”, also extend to the digital space.
India acceded to the ICCPR in 1979, affirming its commitment to the freedoms laid down in the Covenant. In the Nilabati Behera case (1993), the Supreme Court had relied upon a provision in ICCPR to hold that the government can be directed to pay compensation for violation of fundamental rights. Few years later in 1997, the Supreme Court again turned to international human rights law to lay down “Vishakha Guidelines” for prevention of sexual harassment at workplace.
Therefore, India has an obligation to ensure that its laws and policies do not flagrantly violate the freedoms enshrined in ICCPR. However, certain provisions of the new IT Rules purport to create an ecosystem where the right to exercise freedom of speech in the digital space, a freedom guaranteed under ICCPR, would be seriously jeopardised.
"“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 emphasise that the respect for diversity, pluralism and independent information is a necessary condition for the functioning of any democratic society.”" - Special Rapporteur
The broad language used in the new rules defining “unlawful speech”, such as “misleading”, “decency”, breach International Law, wherein restrictions must be provided by law and be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. This would make the digital space fertile for taking down legitimate free expression on political and arbitrary grounds.
"“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 emphasised by our predecessors, these techniques are unlikely to accurately evaluate cultural contexts and identify illegitimate content.”" - Special Rapporteur
Lack of Judicial Oversight is Against International Standards
One of the major criticisms of the New IT Rules is that it empowers the central government to ask the private companies to take down content under ambiguous categories and that too without adequate independent oversight.
Lack of independent oversight in laws that restrict free speech go against the standards set in International Human Rights Law. In 2018, a report of the Human Rights Council noted that content removals must be undertaken “pursuant to an order by an independent and impartial judicial authority, and in accordance with due process and standards of legality, necessity and legitimacy”.
"“We are particularly concerned that broad wording may result in the arbitrary targeting of anyone who may criticise the government, or express ideas or opinions that are unpopular, controversial or in the 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.”" - Special Rapporteur
Obligation To Reveal Message Originator Violates Privacy Law
Section 4(4) of the new rules, which empowers the government to direct an intermediary to reveal the originator of a message, is a blatant attack on established principles of the right to privacy under international law.
Article 17 of the ICCPR provides that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence”. In November 2016, a report of the Special Rapporteur on right to privacy clarified that encryption is an “effective technical safeguard” that can, among other technical solutions, contribute to the protection of the right to privacy.
The obligation to decrypt and reveal the identity of the originator of a message would put journalists and other activists using digital space for highlighting human rights violations in imminent threat of state oppression and backlash.
This fear is not ill-founded. The past few months have seen BJP-ruled states in India increasingly invoking serious criminal law provisions against journalists who are doing ground reports, or fact-checking government’s claims. Recently, in Uttar Pradesh, the draconian National Security Act was invoked against a person who posted an SOS text on Twitter seeking an oxygen cylinder to fight COVID-19.
"“We are further concerned that Section 4 establishes a general monitoring obligation that will lead to the monitoring and filtering of user-generated content at the point of upload. This form of restriction would enable the blocking of content without any form of due process even before it is published, reversing the well established presumption that states, not individuals, bear the burden of justifying restrictions on freedom of expression.”" - Special Rapporteur
High Time To Reconsider
The Special Rapporteur’s report on the new IT Rules has come as a global embarrassment for India. It has highlighted that the new rules directly undermine India’s obligation under International Human Rights law.
In the recently concluded G7 summit, India signed a joint statement on protecting freedom of speech and expression from political interference and arbitrary restrictions.
However, the Special Rapporteur’s report has sent a strong signal indicating that such a commitment would just be a lip service if India refuses to withdraw or change its new IT Rules.
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