TOKYO — While the recent Group of Seven summit meeting invited India as a member of the club of democracies to counter autocratic forces led by China and Russia, the behavior of the current Indian government at home belies international confidence.
The Bharatiya Janata Party, led by Prime Minister Narendra Modi, was less than pleased last year with online criticism of its actions amid protests against farm law reforms. The BJP frequently attacks opponents on Twitter and other online platforms, accusing them of spreading “fake news.” Modi’s government has even detained opposition politicians, activists and journalists on sedition charges over social media posts.
Its latest attempt to control online speech was the new Information Technology Rules, announced in February and enacted on May 26. The rules give the central and local governments power to discretionarily categorize certain posts, tweets and other content as “unlawful,” and to force telecoms and online services to take offending opinions down.
Ever since the announcement, the rules have drawn the ire of global internet platforms — which are also affected by them — and rights advocates, who say the rules infringe on freedom of speech and privacy rights.
Three clauses in the new IT rules are seen as particularly problematic.
The biggest concern is forcing online platforms and telecoms to obey takedown orders regarding content and posts deemed “unlawful,” without specifying conditions. Many legal experts say this is de facto state censorship of speech and expression.
Another serious concern is the requirement for messaging apps like Facebook’s WhatsApp to provide information about the “first originator” of problematic messages.
Last is the clause that mandates “significant social media intermediaries” — Facebook, Instagram, Twitter and others — to appoint an Indian resident as a chief compliant officer, who the clause says will be criminally liable for violation of the rules. Under threat of detention and criminal charges, a COO would effectively be a government-held hostage to enforce takedown orders and other requirements.
Facebook has decided to take the Indian government to court over the “first originator” clause as regards the WhatsApp messaging app. The American company filed a lawsuit with the Delhi High Court on May 25, one day before the new rules went into effect, claiming the requirement violates the Indian constitution and the fundamental right to privacy, which the country’s Supreme Court has upheld in the past.
Twitter has never obeyed rejected many of government requests to take down tweets by activists and politicians, even before the new IT rules were enacted. Neither has it appointed the required CCO. Local media reports indicate the company has had difficulty recruiting a CCO because of possible criminal charges as a consequence of Twitter’s failure to comply with takedown orders.
Indian IT minister Ravi Shankar Prasad tweeted on June 16 that Twitter “has deliberately chosen the path of noncompliance.”
In a parliamentary committee hearing on June 18, lawmakers interrogated Twitter representatives as to whether the U.S. company was willing to abide by local laws. Dodging the question, Twitter commented that it is “prepared to work with the [parliamentary committee] on important work of safeguarding citizens’ rights online, in line with its principles of … freedom of expression and privacy.”
Legal experts say Twitter’s only way out of its dilemma — either compliance with takedown orders or appointing a COO — would be a lawsuit to invalidate those clauses in the new rules.
In the meantime, members of the United Nations Special Rapporteurs jointly sent a letter to the Indian government on June 11 claiming that “a number of provisions” of the new IT rules “do not appear to meet the requirements of international law and standards related to the rights to privacy and to freedom of opinion and expression, as protected by … the International Covenant on Civil and Political Rights.” It should be noted that India acceded to the covenant in 1979.
The letter went so far as to say “we encourage withdrawal, review and reconsideration of certain key aspects” of the new IT rules as they “may result in … infringement of a wide range of human rights.”
UN representatives were particularly concerned over the vagueness of the definition of “unlawful” posts, tweets and other content. They also pointed out that the new IT rules themselves are not a law but merely an administrative decree, violating international law that says restrictions on freedom of opinion must be done by laws that clearly and specifically define unlawful content.
The Indian government immediately refuted the charges, stating in a letter that “The right to freedom of speech and expression is guaranteed under the Indian Constitution. The independent judiciary and a robust media are part of India’s democratic structure.”
Oddly, this refutation revealed the Indian government’s seemingly complete ignorance as to why the UN and others are concerned about the new rules: No matter how well-protected freedom of speech may currently be, and no matter how well-intentioned the new rules are, the discretionary powers they grant to government invite future abuse, which could precipitate a collapse of Indian democracy.
The world is watching how the “independent judiciary” analyzes the constitutionality and legality of the new IT rules in response to litigation by Facebook and perhaps others. Depending on the rulings, India could lose its status as “the world’s largest democracy.”