Amendments to the Intermediary Guidelines and Digital Media Ethics Code Rules 2021 proposed by the Ministry of Electronics and Information Technology set up a risky scenario according to the Indian law and international human rights standards, civil society groups say.
Eighteen civil society groups from South and South-East Asia, America and Africa, United States and UK have written to India’s ministry of electronics and information technology, urging it to withdraw the proposed amendments to the information technology rules and to commence a process of consultation on the proposed amendments.
The amendments to these rules currently proposed pose a direct threat to the rights to freedom of expression and privacy, as well as other related human rights protected under the Indian Constitution and international law, they have said in their representation to the government.
“We face a situation where it is a real possibility that other states might start implementing similar laws,” they say, explaining the larger ramifications of the proposed amendments.
The authors of the representation have asked the government to “conduct a sustained, meaningful and participatory consultation with the relevant stakeholders and public at large,” for bringing in a law that will ensure “an open, safe and trusted and accountable internet” for all Indian internet users and to create “a new sense of accountability amongst Intermediaries to their users especially within Big Tech platforms.”
Among the signatory organisations are two Indian entities, the Digital Empowerment Foundation and the Internet Freedom Foundation, both based in New Delhi.
Problematic fix
“The Indian IT Rules and proposed amendments threaten fundamental rights of Indians, including right to expression, assembly and association, information and privacy. However, these Rules should concern not just Indians but others in the region and across the world,” expressed Pavitra Ramanujam, Asia Digital Rights Lead at the Association for Progressive Communications (APC).
“As we have seen with ICT legislations in the past, there is a real possibility that other States might start implementing similar laws, with Bangladesh already following suit with a copycat regulation earlier this year,” she adds.
The new provisions are problematic on many levels, the letter points out, especially since the provisions can promote overzealous content moderation practices and incentivize the use of automated content controls, besides referring to broad categories of information that are vague and open to abuse.
It says that the proposed due diligence obligations are overly burdensome, impractical and virtually impossible to comply with and has a negative impact on free speech.
Worse, it says that a government-led and appointed grievance appellate committee proposed by the new law goes beyond judicial assessment and will only worsen the existing issue of non-judicial oversight, with extensive powers to the executive to control online speech.
Beyond Indian shores
The threat would not only come from the Indian State – and potentially worldwide – but also from the tech private sector, the representatives of the organisations feel.
Ramanujam warns, “The rules will also have a ripple effect on the way tech companies function everywhere – if tech companies agree to comply with the rules in full, it would lead to an increase in the use of automated tools and proactive monitoring, and undermine end-to-end encryption, leaving everyone vulnerable to censorship and breach of privacy.”
The fix could create more problems – and not just for India, the representation by the group of 18 says.
The letter says that as per international human rights standards, any restriction to the right to freedom of expression has to go through a strict test of legality, necessity and proportionality, and legitimacy. Some of the provisions set up by the proposed rules fail to pass all parts of this test.
The representation alludes to the 2018 report of the former UN Special Rapporteur on freedom of expression and opinion in his report on content moderation. Quoting from the report, it says, “States should refrain from adopting models of regulation where government agencies, rather than judicial authorities, become the arbiters of lawful expression.”
Image: Gerd Altmann used under Pixabay License (https://pixabay.com/images/id-1187198/)
