India’s new IT rules do not conform with global human rights norms, say UN experts

United Nations’ experts have said that India’s new IT rules “do not conform with international human rights norms”. Three special rapporteurs sent a communication to the Indian government on June 11 on behalf of the UN where they expressed “serious concerns” with certain parts of the recently- enforced IT rules and said that “due diligence obligations” placed on intermediaries may lead to “infringement of a wide range of human rights”, as Mint reported.

This communication, which you can read in full here on the UN website, was written by Clement Nyaletsossi Voule, Special Rapporteur on the rights to freedom of peaceful assembly and of association, Irene Khan, Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, and Joseph Cannataci, Special Rapporteur on the right to privacy. The communication has terms like “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".

It mentions that India’s new IT rules violate the rules that have been laid down in the International Covenant on Civil and Political Rights (ICCPR), which is 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 communication 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, and added - “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.” The rapporteurs are of the opinion that these techniques “may not accurately evaluate” cultural contexts or identify illegitimate contexts.

The communication also expresses support for encryption. This particular piece of technology has been one of the major issues of contention between WhatsApp and the Indian government. WhatsApp sued the Indian government last month over the new IT rules and alleged 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 communication said, adding that the recommendations have been made in favour of incorporation of encryption capabilities into software applications and hardware devices through “privacy by design".

The seven-page communication from the three rapporteurs also expresses concerns over various other aspects of the IT rules and has 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. 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.

Responding to this communication, the Indian government has told the UN that the IT rules have been “designed to empower ordinary users of social media" and that the government had “held broad consultations with civil society and other stakeholders in 2018”. The government 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 has written in its response.