India’s internet crackdown faces legal challenges as critics fear slide towards ‘digital authoritarianism’

Six years ago, when India’s prime minister Narendra Modi presented his dream of a “digital India” to the country, less than 20 per cent of the nation had internet access and its billion-plus population was seen as offering huge but almost entirely untapped potential to the world’s media giants.

What has happened since then has been nothing short of transformational – now, some 700 million Indians are online and the country represents the biggest social media market in the world.

But Mr Modi’s success story has created new problems for the government in terms of how to regulate this new online space and the influence in India of huge foreign-based organisations, and has been accused of “digital authoritarianism” by critics.

As the world’s largest democracy, India boasts civil liberties that could only be dreamed of in neighbouring China. Yet at the same time, there is some jealousy over the success of homegrown Chinese digital media companies, from WeChat to Weibo and Youku, operating in a marketplace where they don’t have to compete with established western brands like Facebook.

Critics say the Indian government’s response has been a lean towards a new kind of authoritarianism, after the government this year passed a series of sweeping new rules to crack down on all forms of digital platforms, from Silicon Valley’s biggest social media giants to streaming apps and news sites.

And the Modi administration is encouraging homegrown startups like the Twitter lookalike Koo which boasts 10 million users despite launching a little over a year ago – with some government ministries preferring to issue statements via “koos” rather than tweets.

The new rules are being challenged on two fronts – by the digital platforms themselves and by Indian users, who question what they call excessive curbs on freedom of speech. There are currently more than 18 active petitions against the rules in courts across the country.

The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules 2021 were issued by the IT ministry in February. Platforms were given three months, ending on 25 May, to comply or face severe penalties that could include heavy fines and lawsuits against local staff.

The rules dictate that so-called “intermediaries” – online platforms that host users’ posts rather than publishing their own content – should acknowledge complaints within 24 hours and resolve them within a reduced timeline of 15 days.

Platforms deemed to have a “significant” presence in India – with 5 million or more users – were told they must follow a traceability clause that requires them to assist authorities with the “the identification of the first originator” of any information. This applies to messaging platforms such as Whatsapp, effectively breaking their encryption pledges to users.

It would also be mandatory for firms to publish monthly compliance reports and appoint India-based officers for government contact and grievance resolution – individuals who would be personally and criminally liable for any breaches of the rules.

“With a jolt, the internet policy of the world’s largest democracy has veered in an utterly undemocratic direction,” Mishi Choudhary, a technology and policy lawyer based in New York, tells The Independent. “The entry into force of the new rules has turned India into one of the most intrusively regulatory states in the so-called free world.”

Of all the social media giants, it was Twitter that pushed back hardest. The Jack Dorsey-owned firm, with more than 22.2 million users in India, refused government requests to remove hundreds of tweets critical of the Modi government’s handling of the Covid pandemic.

At the same time, it called out misinformation posted by members of the ruling party, terming such posts as “manipulated media”, similarly to how it increasingly dealt with Donald Trump’s false claims in the latter stages of his presidency.

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And it resisted mounting pressure to appoint local officers in the compliance roles, despite the government suggesting its failure to do so would mean the platform losing its legal status as an “intermediary” – and thereby becoming liable to prosecution over any content published on it by users.

The row escalated to the point where police raided Twitter’s Delhi offices, prompting the company to say it feared for the safety of its local staff. The government had to issue a statement saying that “Twitter is and will remain safe in India and there is no threat” to its officials.

But Twitter now has at least four legal cases pending against it by the Indian government.

“The new IT rules threaten all the big social media companies in case of even a small non-compliance. A criminal action can be instituted directly against them if somebody posts something on Twitter or Facebook, which is illegal, and a complaint can lie against the platforms,” says Tanmay Singh, a lawyer from the India-based Internet Freedom Foundation.

“We’re heading in a more authoritarian and more control-based jurisprudence with these rules, which is a cause of concern. I believe that the IT rules 2021 are undemocratic and unconstitutional. They are unreasonable and curb citizens’ right to free speech guaranteed under the constitution of India,” he adds.

One of the first individuals in India to bear the consequences of the new IT rules was the popular cartoonist Manjul, who goes by only his first name, known for taking on the government with sharp satirical drawings.

In June, he received a notice from Twitter’s legal team which said the authorities had sought action against the cartoonist’s handle as it “violates the law(s) of India”.

“Till now, I do not know what laws I violated,” Manjul tells The Independent. “This is intimidation and it was mentally disturbing to me.

“By this [action], they want me not to draw. But I will draw, and draw even more.”

Choudhary says the government is still trying to tread a line between wanting to portray itself as the new Silicon Valley of the world and also giving a boost to homegrown companies as China does.

“The government has no clear vision about which direction it wishes to take its technology industry. It wants to be Silicon Valley but does not want its citizens to have rights like the American constitution guarantees, because it believes in total information control. It does not want to be compared to China and distinguishes itself as a democracy, but does have a lot of China envy with respect to local company success,” she says.

Experts are especially concerned about the idea of undermining end-to-end encryption technology on chatting platforms like WhatsApp. These platforms are being expected to develop the technical ability to identify the sender of every message, which experts say will force platforms to store every message’s unique tag to trace back the originator.

Facebook-owned Whatsapp has sued the Indian government in court to block this rule, calling it a violation of privacy rights in India’s constitution.

Kazim Rizvi, a public policy researcher, explains to The Independent that breaking encryption can have larger implications than the already serious concern of undermining the privacy of citizens, potentially threatening national security.

“Creating backdoors on encryption would lead to savvy criminals moving out and developing their own peer-to-peer private messaging services, which will hurt law enforcement’s [ability] to trace such criminals,” says Rizvi.

He adds that subjecting local employees of these platforms to criminal liability for users’ content is “unnecessary and inconsistent with international best practices”.

The Indian government defended the rules in a statement in June to a panel of UN rapporteurs, saying the “concerns alleging potential implications for freedom of expression that the new IT rules will entail are highly misplaced”. It came after three special UN rapporteurs expressed “serious concerns” with certain provisions in the rules, and called them an “infringement of a wide range of human rights”. The panel added that the rules appeared to be in violation of the International Covenant on Civil and Political Rights (ICCPR).

The government defended the circumstances under which a platform would be required to assist the authorities in tracking a message’s originator. “Only when a message already in public circulation is giving rise to violence, impinging on the unity and integrity of India, depicting a woman in a bad light, or sexual abuse of a child and when no other intrusive options are working, only then the significant social media intermediary will be required to disclose as to who started the message,” its statement read.

Digital news media platforms in India have also expressed concerns. Challenging the constitutional validity of the rules in the Delhi High Court, India’s largest news agency, the Press Trust of India (PTI), said they attempt to regulate “publishers of news and current affairs content”, especially digital news media, by imposing “sweeping” government oversight under a vaguely worded “code of ethics”.

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And in a major victory for those challenging the new rules, a petition by the news website The Leaflet and by journalist Nikhil Wagle saw the Bombay High Court pause two significant provisions of the rules that pertain to news publishers.

The judges pointed out what they saw as the threat to freedom of the press posed by the levels of regulation set out. In its ruling, the court observed that “people would be starved of the liberty of thought and feel suffocated to exercise their right of freedom of speech and expression, if they are made to live in present times of content regulation on the internet with the code of ethics hanging over their head as the sword of Damocles”.

In another significant statement, the Madras court recognised that “there is substantial basis to the petitioners’ assertion” that freedom of speech “may be infringed in how the rules may be coercively applied to intermediaries.” It added that “there is a genuine apprehension, as the petitioners suggest, that a wink or a nod from appropriate quarters may result in the platform being inaccessible to a citizen”.

Anand Grover, a senior lawyer at the Supreme Court of India and co-founder of The Leaflet, believes the rules will be “definitely struck down, else they wouldn’t have gotten stay[ed] as the court is convinced that there is prima facie case”.

He adds: “These rules are threatening to the freedom of press and if upheld by the court they give right to the government and their bureaucrats to delete or force deletion of news content at their whim and fancy. This sends a chilling effect.”

Responding to one of the challenges by media firms and foundations, the government told the Delhi High Court that there is no evidence the IT rules will have a “chilling effect on the right to freedom of speech” and they are designed to “prevent the misuse of the freedom of press”.

The government declined to put forward an official to be interviewed when approached by The Independent and did not respond to questions by the time of publication.

Meanwhile, one of the founders of homegrown app Koo says that far from simply parroting Twitter, the platform is fulfilling public demand for an India-based and India-regulated online forum. Aprameya Radhakrishna told The Independent that, unlike the American giants, Koo is determined to follow the law of the land and “operates in a world in which Twitter does not exist”.

Despite its months-long tussle with the government and several court hearings, Twitter has now appointed the officers required and on 10 August the government said it recognised its compliance with the IT rules.

While the battle seems to be over for now, much remains at stake for users, Rizvi says, when it comes to free speech and privacy. He says that if the courts do not intervene, the rules as they stand with “dire implications of overarching legal mandates are quite concerning, and will impact user rights”.