By Tanya Napolean
Introduction
The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules was introduced by the Indian government on February 25, 2021.
The concept of intermediaries created under the Information Technology Act of 2000 is preserved in the revised Rules, 2021. Unlike the 2011 Intermediary Guidelines, the new Regulations pertain to all websites, blogs, online discussion forums, and other related intermediaries.
The Central Government announced the guidelines that will regulate online content, including the ability for users to appeal actions taken against them by social media companies like Facebook and Twitter, as well as the establishment of a three-tier self-regulatory structure for OTT platforms like Amazon Prime, Netflix, and Hotstar
The Centre claims that the changes would equalize the playing field between conventional and new media. MeitY (Ministry of Electronics and Information Technology) and the Ministry of Information and Broadcasting have been collaborating to develop a comprehensive framework for regulating material on OTTs and social media intermediaries.
OTT services like Amazon Prime have been reprimanded for showing content that some say, “hurts religious feelings.” Meanwhile, social media firms like WhatsApp and Twitter have fought with the government over an update to their usage policies in the case of non-compliance with takedown demands in the case of an “offensive” or “anti – nationalist” post/tweet.
This article examines the effect of international conventions on these new IT rules.
Why all Social media platforms must adhere to new IT rules and regulations?
- Hire a Chief Compliance Officer who will oversee ensuring that the Act and Rules are followed. A person who fits this description should be a resident of India.
- Assign a Nodal Contact Person to coordinate with law enforcement authorities 24 hours a day, 7 days a week. Such a person must be a permanent resident of India.
- Employ a Resident Grievance Officer to carry out the responsibilities outlined in the Grievance Redressal Mechanism section. Such a person must be a permanent resident of India.
- Compile a compliance report that includes data of complaints collected, actions done in response to the complaints, and details of content deleted promptly by a key social media intermediary.
What is the Problem?
The Special Rapporteur on the Right to Freedom of Speech of the United Nations wrote a letter to the Government of India, criticizing some sections of the recently implemented Information Technology Rules, 2021.[1]
Specific sections of the new IT Rules have been identified by the Special Rapporteur as posing a danger to freedom recognized under international human rights law due to their potential implications.
These are some of the provisions:[2]
- Section 3(1)(d): Provides vague and wide grounds for classifying speech as “unlawful,” such as “morality,” “decency,” and “defamation.”
- Section 3(1)(j) states that an intermediary must comply with government demands to “deliver information under its control or custody” within 3 days.
- Section 3(2): Mechanism for resolving grievances.
- Section 4: Additional Requirements for Important Social Media Intermediaries. They must designate a Chief Compliance Officer who can be held responsible if due diligence is not followed.
- Section 4(4): SSMIs that provide services primarily in the form of messaging must be able to identify the message’s original source.
- Section 6: The Ministry may, by order, compel any intermediary that is not a prominent social media intermediary to comply with all or some of [its] responsibilities, for reasons to be stated in writing.
How does the New IT rules are in Breach of Human Rights and International law on Freedom of Speech?
India affirmed to the ICCPR (International Covenant on Civil and Political Rights) in 1979, and it therefore has a responsibility to guarantee that its laws and actions do not blatantly contradict the ICCPR’s freedoms and regulations.
Certain elements of the proposed IT Rules, on the other hand, appear to create an environment in which the right to freedom of expression in the digital domain, as provided by the ICCPR, would be gravely threatened.
The Supreme Court used a clause in the ICCPR in the Nilabati Behera case or Nilabati Behera @ Lalit Vs State of Orissa[3] to rule that the government might be ordered to pay compensation for violations of fundamental human rights.
A few years down the line, in 1997, the Supreme Court used international human rights legislation to establish the “Vishakha Guidelines” for workplace sexual assault prevention.[4]
To begin with, The Regulations do not pass the legal criterion because they give the Government unrestricted discretion to pick which intermediaries must comply with stringent regulatory requirements. A restriction on freedom of expression must be lawfully implemented in a specific way to fulfill the legal requirement.
Article 19 of the International Covenant on Civil and Political Rights (ICCPR) guarantees freedom of expression and the right to freely seek, receive, and transmit any information. Furthermore, the Human Rights Council adopted a decision in July 2012 stating that the rights granted to people “offline” equally apply in the digital world.
This unrestricted power allows the state to choose which social media sites to support, allowing certain platforms to be controlled with less restrictions than others that refuse to remove opposing posts critical of the government and are subject to more rigorous controls.
As a result, this does not fulfill the requirement of Article 19 of the ICCPR.
The letter also discusses how the new IT restrictions would affect media freedom stating:
“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 pressure, especially political pressure. We worry that the rules grant a government agency extensive power to order the blocking of content in the absence of any meaningful safeguards in violation of international standards on freedom of expression.”
The traceability provision in Rule 4 of the 2021 Rules, as stated above, infringes on the right to privacy guaranteed by Article 17 of the ICCPR. Mandating platforms to track and reveal the message’s origins in response to an executive order contradicts people’s expectation that their interaction on private messaging services will remain private.
The letter by Special Rapporteur mentions Article 17 of the ICCPR, which deals with arbitrary or unlawful invasion of privacy, to emphasize how, in the digital realm, technologies like encryption and the protection of anonymity safeguard these rights, particularly for journalists.
“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,” [5] the letter states.
Conclusion
In terms of its political system and many other factors, India remains a strong democracy. However, these new IT Rules mark a turning point for freedom of speech and expression in India’s democratic existence, as well as the ICCPR’s future.
Journalists, nongovernmental organizations, and activists have urged courts to hear the objections to the 2021 Rules to protect freedom of speech and privacy rights while repealing the unconstitutional elements in the Regulations.
These Regulations would control massive multinational tech companies in India if sustained and enforced with the current guidelines but would be the expense of freedom of speech and expression in the world’s greatest democracy.
Reference-
- Spcommreports.ohchr.org, spcommreports.ohchr.org (last visited Jul 8, 2021). ↑
- Real Estate et al., UN special rapporteurs express concern over India’s new IT Rules @businessline (2021), .thehindubusinessline.com (last visited Jul 8, 2021). ↑
- Nilabati Behera @ Lalit Vs State of Orissa 1993 AIR 1960 ↑
- Joe Meegan, Vishaka v. State of Rajasthan Tackling Violence against Women, blogs.lse.ac.uk (last visited Jul 8, 2021). ↑
- Spcommreports.ohchr.org, spcommreports.ohchr.org (last visited Jul 8, 2021). ↑