Access Now is extremely concerned by the alarming new powers the Indian government has granted itself, announcing today, February 25, its increased control over content on social media platforms. It has finalised an amended set of rules — for immediate publication and implementation — to change how it can regulate internet intermediaries such as social media platforms, and online media sites. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules are delegated legislation issued by the Union Government, purportedly under India’s Information Technology Act.
These new rules supersede earlier, controversial guidelines which were restricted on fundamental rights grounds by the Indian Supreme Court in a 2015 judgement. The original rules aimed to specify the basic due diligence requirements telecom companies, internet service providers (ISPs), online platforms, and other internet intermediaries had to fulfil in order to make use of a qualified immunity for legal liability for user content set in place by Parliament in Section 79 of the Information Technology Act. The new rules, however, focus less on due diligence, and more on the redistribution of power in favour of the government — creating space for potential human rights abuses.
“The mandates in the new rules would result in encouraging internet platforms to over-censor content, require dangerous unproven AI-based content regulation tools, retain vast amounts of user data for handing over to the government, and undermine end-to-end encryption crucial for cybersecurity and individual privacy,” said Raman Jit Singh Chima, Asia Pacific Policy Director at Access Now.
In late 2018, Indian news media revealed that the Union Government under the BJP-led NDA coalition had engaged in confidential, closed door discussions with industry on a push to change the rules, leading the Ministry of Electronics and Information Technology to belatedly host wider public consultations with stakeholders. Access Now participated in the consultation, submitting comments warning that the proposed changes were unlawful, and contained measures well beyond what the Indian Parliament authorised in the Information Technology Act. Access Now noted the potential to directly impact the fundamental rights to freedom of speech, expression, online association, and assembly with measures that would encourage over-censorship by web platforms, mandate dragnet retention of user data, and harm secure communications by requiring encryption to be broken in order to ensure “traceability of communications”.
“The government has armed itself with legal measures to directly monitor and oversee online news services and video streaming at a time when there are significant concerns about expanded online censorship and harassment by government agencies in India — and across the globe — targeting peaceful protesters, critics, and artists speaking up for democracy,” said Eliška Pírková, Global Content Governance Lead at Access Now.
The new rules expand on alarming human rights infringing measures, and appear to force a government-created Code of Ethics on online news, current affairs, and curated content websites, along with imposing a requirement to create multi-tiered self-regulatory mechanisms, that must be reported on to the Ministry of Information and Broadcasting. The scope has also increased, and now applies to online news and curated video services, such as streaming services.
Notably, the new rules expand the government’s reach, and include new provisions set by the executive branch, not authorised by the Indian Parliament, mandating new regulations that require online services providing news, current affairs content, and online curated content in India to register and regularly report to India’s Ministry of Information and Broadcasting.