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The Indian Ministry of Electronics and Information Technology has just proposed amendments to the Intermediary Guidelines and Digital Media Ethics Code Rules 2021, which introduce modifications that set up a risky scenario according to the Indian law and international human rights standards. We face a situation where it is a real possibility that other states might start implementing similar laws.
Organisations operating in more than 10 countries and internationally in the promotion and protection of digital rights and freedoms urge the Ministry and the Government of India to suspend the implementation of the IT Rules 2021 and to review them in their entirety. Rights to freedom of expression, information, association and privacy must be protected and strengthened.
The Intermediary Guidelines and Digital Media Ethics Code Rules 2021 (IT Rules 2021), enforced by the Ministry of Electronics and Information Technology in India, aim to 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.”
However, 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. If passed, these amendments will further curtail rights of people through imposing additional due diligence requirements on intermediaries that could result in over-censorship, impractical timeframes for resolution of complex grievances related to rights, and the formation of an appellate authority that is not independent of the executive.
International and national organisations are raising the alarm about the dangers of this initiative. In a joint submission addressed to the Government of India and the Ministry of Electronics and Information Technology, they urge these authorities to:
Suspend the implementation of the IT Rules 2021 and commit to reviewing them in their entirety, to ensure that the rights to freedom of expression, information, association and privacy are protected and strengthened;
Withdraw the proposed draft amendments to the IT Rules 2021;
Conduct a sustained, meaningful and participatory consultation with the relevant stakeholders and public at large.
While it is a positive step to have the IT Rules 2021 amended, it should be done to address important shortcoming in its 2021 text, which have repeatedly been raised by civil society, more fully set out here, here, here and here.
A fix that could create more problems – not just for India
"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 proposed amendments introduce four main modifications to the 2021 version that are particularly worrisome:
Intermediaries’ duty to ‘ensure compliance’ and to ‘cause the user of its computer resources not to host, display, upload, modify, publish, transmit, store, update or share’ – through an implicit push for proactive monitoring - an extensive list of open and vague types of information, irrespective of any specific complaint.
The adoption of due diligence obligations that are overly burdensome, impractical and virtually impossible to comply with, especially as it relates to the further limited timeframe for removal and blocking of content in certain contexts, exacerbating the Rules’ negative impact on free speech.
The creation of a government-led and appointed grievance appellate committee that can overturn platform content moderation decisions irrespective of judicial assessment, worsening the existing issue of non-judicial oversight, with extensive powers to the Executive to control online speech through the grievance redressal mechanism.
And the threat would not only come from the Indian state – and potentially worldwide - but also from the tech private sector. As 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."
Joint submission sent on 5 July 2022 to the Government of India and the Ministry of Electronics and Information Technology: Civil society calls on Indian government to withdraw amendments to IT Rules and pursue participatory consultation
India considering appeals panel with power to reverse Facebook, Twitter and YouTube content moderation decisions
Deep dive: How the intermediaries rules are anti-democratic and unconstitutional
Analysis of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
Indian IT Ministry’s amendments to the 2021 IT Rules: not enough to protect rights and freedoms
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