Experts from the United Nations have said that India’s new IT rules do not conform with international human rights norms. In a communication sent to the government on June 11, three special rapporteurs from the UN expressed “serious concerns” with certain parts of the legislation, and said that “due diligence obligations” placed on intermediaries may lead to “infringement of a wide range of human rights”.
The communication, which is publicly available on the UN’s website, was 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.
In it, the UN experts say that terms such as “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…” are overly broad and “lack sufficiently clear definitions”, which may lead to “arbitrary application”.
The letter says that India’s new IT Rules are in violation of rules laid down in the International Covenant on Civil and Political Rights (ICCPR), a key international human rights treaty. “Pursuant to Article 19 (3) of the ICCPR, restrictions on the right to freedom of expression must be ‘expressly prescribed by law’ and necessary ‘for respect of the rights or reputations of others’ or for ‘the protection of national security or of public order, or of public health or morals’,” the letter states.
“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. “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,” they added, saying these techniques may not accurately evaluate cultural contexts and identify illegitimate context.
Furthermore, the letter also expresses support for encryption, a technology that has been a major bone of contention between Facebook-owned WhatsApp and the Indian government. WhatsApp sued the Indian government last month over the new IT rules, alleging that they undermine the users’ right to privacy. “The Special Rapporteur on the right to privacy has consistently supported encryption as an ‘effective technical safeguard’ that can, among other technical solutions, contribute to the protection of the right to privacy,” the letter said, adding that he has made recommendations in favour of incorporation of encryption capabilities into software applications and hardware devices through “privacy by design”.
The seven-page communication expressed concerns on various other aspects of the IT rules, and asked the government for a response. “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,” it said. “We would therefore encourage the Government to take all necessary steps to carry out a detailed review of the Rules and to consult all relevant stakeholders, including civil society dealing with human rights, freedom of expression, privacy rights and digital rights,” it added.
In response to the letter, 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. It also said that the “traceability of first originator” seeks “only limited information”. “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,” the government wrote in its response.
The traceability rule is the central conflict between encrypted platforms like WhatsApp, and the Indian government. The platforms, which use end-to-end encryption technology to ensure user privacy, have argued that they will have to read, track and trace all user messages in order to trace the first originator of the texts that are offensive.