[Law & Tech] IT Rules, 2021: Did UN Special Rapporteurs send similar communications to other countries?

With the expansion of the internet and an increase in the number of platforms used for connecting and sharing information, various issues associated with it are also surging. Misinformation, Fake news, child pornography, etc become easier to circulate using platforms like Facebook, Twitter, Instagram, Whatsapp, YouTube, etc.

Although until recently, the platforms did not prefer to have as much say in the kind of content available on their platform, their approach towards moderating content being shared has been changing, with the platforms coming up with various content moderation polices.

Apart from that, countries are also trying to tackle these issues which have larger ramifications, by enacting various legislations. Such legal measures have often come under the scanner for breaching rights such as freedom of speech and digital rights.

With the recent communication of the UN Special Rapporteur to India, regarding it's criticism of the newly enacted IT rules, 2021, it becomes pertinent to point out whether the same was done by the UNSR when similar legislations were enacted in other countries.

The UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression (UNSR), share comments and opinions regarding the legislation of various countries that allegedly violate international obligation as well as national laws. With countries all over the world focusing to regulate online space, the UN Special Rapporteur has in recent past sent communications to Germany, France, Italy. The most recent communications appear to be with Brazil and the USA in 2020, India in 2021.

Communication with India[1]:

On June 11, 2021, the UNSR had sent communication to India regarding the Information Technology (Intermediary Gudielines and Digital Media Ethics Code) Rules, 2021, expressing concerns regarding the rules not adhering to the international laws. Specifically, the said rules were mentioned in the communication to be inconsistent with the requirements of international law and standards related to the rights to privacy and freedom of opinion and expression, as protected by Articles 17 and 19 of the International Covenant on Civil and Political Rights, acceded to by India.

The communication mentions three major concerns over the new rules:

1. The grounds of restrictions are too broad

The communication stated that terms like content that is "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 [...] to cause any injury to any person.”, are quite broad definitions and would lead to arbitrary application.

Even the terms like ‘mislead’ and cause ‘any’ injury to a person were stated to be excessively broad. The communication highlighted the need to have precise definitions in order to ascertain that legitimate speech is not prohibited.

2. The rules would violate the freedom of speech and expression, under ICCPR, due to the procedures of content takedown and role of companies in content moderation.

The communication also noted the role of companies to remove use content, as per the rules. It was stated that companies might “over comply” with the take down requests and also incorporate automated systems for content moderation.

Not only did the communication mention short deadlines and criminal penalties that could lead to illegitimate censorship, but also mentioned the arbitrary power the rules vest with the authority to take down content.

The communication also cited the Shreya Singhal v. Union of India judgement from 2015, which states clearly that content restrictions may only come from a reasoned order from a judicial, administrative, or government body.

3. The rules would violate the right to privacy provided under ICCPR, with the provision to break encryption to identify the originator of a message.

Citing Article 17 of the ICCPR, the communication mentioned that the new IT rules violated the right to privacy due to the nature of the monitoring and takedown mechanism enabled by the provisions under the rules.

The communication mentions the lack of any accountability under which the executive orders can access user data, as well as restrict content. It also highlights the fact that in light of conversations no longer being private, “there is a serious concern that the new rules will create a climate of self-censorship.”.

To the above-mentioned communication, Government of India has filed a response[2] stating that the said rules are not in violation of the international law and that the rule shave been enacted in consultation with the various stake holders. The reply also states that the rules have been framed in exercise of the statutory powers of the IT Act, while considering the principles of reasonableness and proportionality.

It is important to mention that while the government has replied to the said criticism, there are pending cases as well with regard to the viability of the new rules in various courts around the country by companies as well as private parties.

UNSR communication pertaining to other countries

Owing to the issues of related to online circulation of information, various countries have enacted legislations, wherein UNSR has raised concerns of violations of the international law and human right implications of respective legislations. Recent communications to Brazil and USA have been stated below:

A. Communication with Brazil[3]:

In context of Brazil, the communication that UN sent was with regards to the draft bill on "Freedom, Responsibility and Transparency on the Internet". The purpose of the said bill is to combat purposeful disinformation online. In July, 2020, the special rapporteur raised concerns regarding the said bill, to not be consistent with the international obligations. Citing the lack of time available for debating the bill as well as the consultation with various stake holders, the rapporteur raised the following concerns:

1. Mandatory User identification:

The rapporteur has raised concerns with regards to the requirement of the bill to identify the users through a valid ID proof and link with phone numbers

It states that, “The measure, if approved, will create several obstacles to the exercise of fundamental rights. On the one hand, it represents a barrier to access social networks and instant messaging services for those who do not have a mobile device registered to them or which do not have a valid identity document, which is a reality that affects millions of people from groups in vulnerable situations in Brazil and other countries globally.”

Moreover, the rapporteur also highlights that the excessive charges associated with account creation as per the new bill, would hamper fundamental rights and restrict access.

Such obligation also undermines the right to anonymity which may be necessary in exercise of various fundamental rights, stated the communication. While the UNSR distinguishing anonymous speech to commit crimes, stated that is not covered under protected speech.

2. Limitations on use communication and data storage

The communication also raise concerns over the number of time messages can be circulated, number of times messages can be sent in a particular group an placing an obligation on the platform to store the messages for a period of three months. It was stated that such instances may weaken encryption and hence undermine the right to privacy.

3. Content moderation and responsibility of internet service providers

The communication mentions that the manner in which content moderation and responsibility of internet service providers in carved in the draft bill, violated the right to speech and expression.

The draft bill places obligation on the service provider to remove the content immediately in certain cases, while in other procedure to have right to defence in place would be available, post removal.

The communication mentioned that, “The draft departs from the protection offered by international law to intermediaries in the free flow of information on the Internet and constitutes, in that sense, a step backwards for the hemisphere. By making intermediaries responsible for the content that third parties share on their platforms, it is inevitable that incentives will be created that run counter to the free flow of information or that there will be higher levels of censorship for fear of punishment.

By regulating with the most limited and highly concentrated model, the project risks strengthening those actors, limiting the creativity that has always operated as an engine of change on the Internet, and preventing -even unintentionally- the emergence of new products and applications. The Internet is a wider, more pluralistic and diverse world than the large intermediary platforms.”

B. Communication with USA[4]:

In March 2020, similar communication was also made to the US in the context of the ‘Eliminating Abusive and Rampant Neglect of Interactive Technologies Bill’ (“EARN IT Act”). The legislation aimed to address the threat of availability of child sexual abuse material online. Although the objective seems to be legitimate the policy about it was objected to by the UNSR, to be inconsistent with the domestic as well as the international law.

The communication dwelled on, “The pertinent question is whether the legislation would pose risks to fundamental freedoms, in particular privacy and expression, that cannot justified in accordance with the standards of legality and necessity and proportionality...” The following concerns were accordingly raised to be in violation of ICCPR.

1. Creation of a National Commission on Online Child Sexual Exploitation Prevention:

The communication states that recommendation of best practices by a 19 member commission, majorly comprised of law enforcement community, may weaken encryption. Lack of expert on privacy in such commission and presence of a cryptography expert ‘indicate that the commission would evaluate and possibly weaken encryption standards.’, stated the UNSR.

The communication also stated that since the commission would be in charge of determining the restriction on free speech and which may lead to arbitrary censorship, violative of the right to speech and expression.

Furthermore. the commissions recommendation of ‘best practices’ to deal with issues of online child sexual exploitation, remain unclear, which could lead to over broad monitoring and lead to weakened encryption.

Also, the enaction of the bill containing the recommendation of best practices are without going through the Congressional procedure and hence contrary to the mechanism provided by the law, stated the communication by the UNSR.

2. Immunity under Section 230 of the US Communications Decency Act:

The bill seeks to amend the section that provides immunity to the intermediaries. It states instead that the immunity needs to be earned by : “1) certifying to the Attorney General that it has implemented, and is in compliance with the congressionally-approved “best practices”; or 2) showing that they have “implemented reasonable measures relating to the matters [covered by the bill’s provision governing best practices].”

The communication also mentions the chilling effect that individuals right to privacy and expression would have due to the change in requirement of the intermediaries to remove content. Previously the intermediary would be liable in case of “knowing” that the users are distributing child sexual abuse material on the platform. The bill amends such requirement to allow liability in cases of ‘recklessness’. Such requirement, states the communication, would pressurise companies in removing lawful content in a broad effort to avoid liability.

Moreover, the communication also states that “Governments should only seek to restrict content pursuant to an order by an independent and impartial judicial authority, and in accordance with due process and standards of legality, necessity and legitimacy as stated above. They should refrain from imposing disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression.”

Unlike India's response, replies from the government's of USA & Brazil were not available for perusal on the website vis-à-vis the communications pertaining to UNSR.

Many legislations and guidelines concerning issues of online content regulation are thus either enacted, currently under discussion or, are expected to be discussed in the near future.
While the UNSR may have raised significant concerns about the right to privacy as well as the right to expression – the effectiveness of raising such concerns regarding online content content regulations across jurisdictions remains questionable.