In the recently released Freedom House Freedom Report, India has been demoted to ‘Partly Free’ from the ‘Free’ category. Civil liberties and free expression have seen a slow but steady breakdown in India over the last few years. A particularly disturbing trend is the silencing of voices through targeted prosecutions of activists, students, academics, protestors, and journalists.
Recently, the arrest of a 22-year-old climate activist for editing a Google document that contained links and resources to support the ongoing farmers’ protests sparked global outrage. There has also been a systematic targeting of media houses and news organisations, including prosecuting journalists under colonial-era sedition laws, filing criminal defamation cases, and in worst cases, attacks on journalists by non-state actors.
In this landscape, social media and digital news organisations play a key role in promoting and preserving the right to freedom of expression. This article analyses key provisions of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (‘the 2021 Rules’) notified last month and explains how if upheld in their current form, the Rules could prove to be a cut to the jugular to online freedom of expression in India.
Freedom of expression is guaranteed by Articles 19 of the International Covenant on Civil and Political Rights (‘ICCPR’) and the Universal Declaration of Human Rights (‘UDHR’). India signed the UDHR and acceded to the ICCPR, in 1948 and 1979 respectively. Over the years, the Supreme Court of India (‘the Court’) has consistently recognised that principles in the UDHR and ICCPR form part of India’s Constitutional ethos. The Court has also relied upon Article 19 ICCPR’s three-part test to assess restrictions on freedom of expression in landmark cases, such as in Navtej Singh Johar v. of India and K.S. Puttaswamy v. Union of India.
The 2021 Rules apply to intermediaries such as internet service providers, social media platforms, digital news organisations, over-the-top (‘OTT’) video streaming platforms and also “other entities that publish news and current affairs”. They introduce harsh new obligations, such as requiring intermediaries like WhatsApp that provide messaging services to identify the first originator of certain messages [Rule 4(2)]; social media platforms to use active content filtering algorithms to identify and remove certain kinds of illegal content [Rule 4(4)]; authorising the Government to pass emergency blocking orders to immediately remove certain content [Rule 16], and imposing criminal sanctions on intermediaries for failing to comply with these Rules [Rule 7]. For these reasons, the Rules’ compatibility with India’s Constitutional law framework was immediately challenged before the Delhi High Court and the Kerala High Court. In addition to the question of the Rules’ compatibility with Indian Constitutional law, the Rules also raise important questions about India’s obligations under the UDHR and the ICCPR.
In this post, I discuss how the Rules are incompatible with India’s obligations under the ICCPR.
Under Article 19 ICCPR, a restriction on freedom of expression must pass the three-part test of being prescribed by law, pursuing a legitimate aim, and being necessary for a democratic society. States have a legitimate aim in regulating intermediaries to preserve public order, national security, and the rights and reputations of others. However, these restrictions must be prescribed by law and the means they adopt must be proportionate to their aim. The Rules violate the legality and proportionality tests in the following ways.
Government can arbitrarily impose additional obligations on certain intermediaries
Firstly, the Rules do not meet the legality threshold as they provide unfettered powers to the Executive to arbitrarily choose the intermediaries that must comply with harsh regulatory obligations. For a restriction on the freedom of expression to meet the threshold of legality, it must be lawfully enacted in a precise, clear, and accessible manner. In Nepomnyashchiy v Russian Federation (2018), the UN Human Rights Committee recalled General Comment 34 to underscore that the concept of “prohibited by law” under Article 19(3) requires that laws be sufficiently precise and must not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution.’ In Reyes et al v Chile (2017), the Committee held that the government’s mandate to guarantee order and public safety, without the necessary safeguards against unfettered discretion — are insufficient in themselves to serve as the sole legal basis required by article 19 (3) of the Covenant.
The 2021 Rules grant sweeping powers to the Government to decide which intermediaries must comply with a special, more-stringent regulatory framework. The Rules impose additional stringent obligations on certain “significant social media intermediaries” that have a user base of over 5 million users. This includes a complex and costly grievance redressal mechanism, deploying advanced content filtering algorithms, allowing user traceability, among others. Interestingly, Rule 6 provides that even if a social media intermediary does not meet this user-threshold, the Central Government may still require an intermediary to meet these additional obligations if it believes that their operations create a material risk of harm to the sovereignty and integrity of India, security of the State, friendly relations with foreign states or public order.
This unfettered discretion allows the Government to arbitrarily pick favourites among different social media platforms and allow some favourable platforms (such as Koo) to be regulated by lesser regulations, as compared to other platforms that refuse to take down critical voices against the Government and be regulated by more stringent regulations. Thus, this fails to meet the legality threshold of Article 19 ICCPR.
Tracing requirement violates the right to privacy
Secondly, the traceability requirement in Rule 4 of the 2021 Rules violates the right to privacy as laid down in Article 17 ICCPR. The Supreme Court of India recognised the right to privacy as an integral part of the right to life under Article 21 of the Indian Constitution in Puttaswamy v. Union of India. Under Rule 4(2) of the new Rules, it is mandatory for a significant social media intermediary providing messaging services to identify the first originator of a message is necessary for the investigation of certain offences. This requirement violates the right to privacy as it grants the power to executive authority to order a social media platform to disclose a user’s identity.
The UN Special Rapporteur on the right to freedom of expression and the Special Rapporteur for freedom of expression of the Inter American Commission on Human Rights reaffirmed in a joint declaration that all decisions relating to communications interception must be made by a competent authority acting independently, per due process of law and with adequate judicial oversight. In this regard, as per the principles on the application of human rights law on communications surveillance, prior judicial authorisation of communications interception is not merely desirable but essential. This is because neither of the other two branches of government is capable of providing the necessary degree of independence and objectivity to prevent the abuse of communication-interception powers.
Requiring platforms to trace and disclose the originator of the message based on an order by an executive authority, violates the reasonable expectation of persons that their communication on private messaging platforms is private. The Government and some experts argue that this provision does not violate user privacy, as platforms do not need to violate end-to-end encryption to identify the originator of a message. However, other technical experts refute this claim and say that compliance with this requirement is not possible unless platforms violate end-to-end encryption.
Disproportionate penal sanctions
Thirdly, the Rules impose harsh penalties including criminal sanctions on intermediaries if they fail to comply with any provision of the Rules. Rule 7 states that any social media intermediary that fails to meet its obligations under the Rules would be liable for any punishment in force including the provisions of the Indian Penal Code. General Comment 34 of the UN General Assembly and the UN Special Rapporteur on the promotion and protection of freedom of expression have both repeatedly affirmed that imposing penal sanctions on free speech cause a severe chilling effect and are disproportionate. General Comment 34 explains that the “application of criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty”. The Rules, in imposing penal punishments as allowed by the Indian Penal Code, do not meet the proportionality requirement under Article 19 ICCPR.
A concoction of global bad practices
Free speech is not restricted by geographical boundaries any longer: with both positive and negative developments having a spillover effect worldwide. These Rules incorporate many speech restrictive policy proposals from other jurisdictions and bring them together in a mishmash of speech restrictive measures. For instance, the Rules require that social media platforms must allow voluntary “verification” of accounts by linking them to an active Indian mobile number. A similar rule was proposed in Italy in 2019 to counter misinformation that mandated social media users to use their government IDs to open social media accounts. This proposal was shot down due to public outrage and never incorporated into their law. However, the Indian Rules now incorporate a voluntary variation of this proposal.
Similarly, the Rules require takedown of certain kinds of illegal content within 24 hours of reporting the content, as first introduced by Germany’s NetzDG and recently by France’s Avia law. As the French Constitutional Council noted last year which striking down certain provisions of the Avia Law, requiring platforms to take down content within extremely short periods often leads to over censorship and poses a grave threat to free speech. As free speech experts around the world are vocally criticising the impact of 24-hour takedown limits on free speech, the 2021 Rules incorporate them.
As the Freedom House report points out, India continues to be a robust democracy in its electoral process and on many other indicators. However, history is a testament that when freedom of speech withers down, it is only a matter of time before robust democracies turn into elected autocracies. These Rules are a watershed moment for freedom of expression in India’s democratic future, and the future of the UDHR and the ICCPR. Activists, journalists, Constitutional experts, and civil society have called upon domestic Courts hearing challenges to the 2021 Rules to uphold the freedom of expression and the right to privacy and strike down the disproportionate provisions in these Rules. If upheld and implemented in their current form, these Rules would regulate big tech in India, but at the cost of freedom of expression in the world’s largest democracy.
Raghav Mendiratta is a lawyer and a Legal Fellow at the Future of Free Speech project (Justitia and Columbia University). @raghav_mendirat
This post originally appeared on Opinio Juris and is reproduced with permission and thanks