India’s IT rules compromise right to privacy of every internet user: UN

Experts at United Nations Office of the Human Rights Commissioner have said in a communication sent to the Indian government on 11 June that it is concerned that Indias Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, in their current form, do not conform with international human rights norms.

“As noted in previous communications sent to your Excellency’s Government, we are concerned that these new rules come at a time of a global pandemic and of large-scale farmer protests in the country, where the enjoyment of the freedom of opinion and expression, including the right to receive information, and the right to privacy, is particularly important for the realization of several other civil, cultural, economic, political and social rights,” read the letter which is authored 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.

The UN Special Rapporteurs also said that they encourage withdrawal, review and reconsideration of certain key aspects of this legislation to ensure that the Rules are in compliance with India government’s international human rights obligations.

According to the UN letter, 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.

“removing content that may “mislead” and cause “any” injury to a person is excessively broad. As social media intermediaries deal with a huge amount of content, a rigorous definition of the restriction of freedom of expression is critical for them to protect speeches that are legitimate under international law, such as the expression of dissenting views. A sufficiently precise definition is essential to prevent the possibility that legitimate expressions is taken down on political or other unjustified grounds. It will ensure that the new rules do not have a chilling effect on independent media reporting,” read the letter.

The letter is publicly available on the UN’s website.

The letter also expresses support for encryption, a technology that has been a major bone of contention between tech giant WhatsApp and the Indian government.

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, they claimed.

“We are seriously concerned that Section 4 may compromise the right to privacy of every Internet user. We are notably concerned by 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. Ineffective procedural safeguards and oversight can only contribute to limiting opportunities for accountability, which in turn can generate further human rights violations,” the letter states.

While raising concerns regarding interference with media freedom, the letter went on to stay: “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 any pressure, especially political pressure. We worry that the Rules grant a government agency extensive powers to order the blocking of content in the absence of any meaningful safeguards in violation of international standards on freedom of expression. Moreover, website blocking is an extreme measure – analogous to banning a newspaper or broadcaster – which can only be justified in line with international standards on human rights. In practice, website blocking is disproportionate in the vast majority of cases since blocking orders are not sufficiently targeted and involve the restriction of access to perfectly legitimate content.”

Meanwhile, in response to the UN letter, the Union government told the international organisation 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.