India's New IT Rules Do Not Conform With International Human Rights Norms : UN Special Rapporteurs

The Special Rapporteurs of the United Nations have written to the Government of India expressing serious concerns over the new IT Rules notified to regulate social media intermediaries, streaming platforms and digital news media,

They have urged the Government of India to withdraw, review or reconsider certain key aspects of the Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 on account of limiting or infringement of a wide range of human rights.

"We are concerned that the Information Technology(Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, in their current form, do not conform with international human rights norms", said the letter written by three UN Special Rapporteurs.

The 8-page letter is penned 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.

They have said that the provisions relating to traceability of first originator, intermediary liability and executive oversight of digital media content violate the rights to privacy and freedom of speech and expression enshrined in the International Covenant of Civil and Political Rights.

Flagging the vagueness in terms employed in the Rules such as "fake news", content that may "mislead" or cause "any injury" to a person, the letter says :

"As social media intermediaries deal with a huge amount of content, a rigorous definition of the restriction of freedom of expression is critical for them to protect speeches that are legitimate under international law, such as the expression of dissenting views. A sufficiently precise definition is essential to prevent the possibility that legitimate expressions is taken down on political or other unjustified grounds. It will ensure that the new rules do not have a chilling effect on independent media reporting".

"We express serious concern about obligations on companies to monitor and rapidly remove user-generated content, which we fear is likely to undermine the right to freedom of expression," the Special Rapporteurs wrote.

"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 continues.

Further, they voiced apprehensions about the rules breaking the encryption of social media platforms, and thereby infringing the right to privacy of the users.

"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.

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 (A/73/348).

Lastly, we are troubled that these provisions will in effect not only apply to "Significant social media intermediary", but potentially to any intermediary. In fact, Section 6 of the Rules provides that "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". 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"

Impact on media freedom

Lastly, the Rapporteurs opined that the Part 3 of the rules will affect the freedom of digital news publishers.

"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. It is essential that the oversight mechanism be an autonomous body, independent from any pressure, especially political pressure. We worry that the Rules grant a government agency extensive powers to order the blocking of content in the absence of any meaningful safeguards in violation of international standards on freedom of expression. Moreover, website blocking is an extreme measure analogous to banning a newspaper or broadcaster which can only be justified in line with international standards on human rights. In practice, website blocking is disproportionate in the vast majority of cases since blocking orders are not sufficiently targeted and involve the restriction of access to perfectly legitimate content", the letter says.

The Government of India has replied to the the above report, saying that the IT Rules are framed taking into account principles of reasonableness and proportionality and that Govt respect right to privacy and media freedom. The Indian government told the UN that the IT rules are "designed to empower ordinary users of social media" and that the government had held broad consultations with civil society and other stakeholders in 2018.

Petitions have been filed in four High Courts of the country challenging the validity of IT Rules.  In March, online news media 'The Wire' approached the Delhi High Court, followed by 'The Quint'. The Kerala High Court has granted interim protection from coercive action under Part III of the Rules to 'LiveLaw' in a petition filed by it against the Rules. Kannada news portal 'Pratidhwani' has approached the Karnataka High Court against the Rules.Recently, WhatsApp moved the Delhi High Court challenging the 'traceability clause' under Part II of the Rules. Later, Google also approached the Delhi High Court against the Rules. Last week, vocalist TM Krishna approached the Madras High Court against the Rules.

Click here to read the letter of UN Special Rapporteurs to India Govt

Click here to read the reply given by Govt of India