India: Tech firms should uphold privacy, free speech

“The Indian government has taken various measures that violate free expression and privacy rights in response to growing international criticism of its handling of the farmers’ protests,” Access Now, ARTICLE 19, the Association for Progressive Communications, the Committee to Protect Journalists, Derechos Digitales, the Electronic Frontier Foundation, Human Rights Watch, Mnemonic, Reporters Without Borders, and WITNESS said today.

On February 14, 2021, the Indian authorities arrested Disha Ravi, 21, a Bengaluru-based activist who volunteers for Fridays for Future, a movement started by the Swedish climate change activist Greta Thunberg, on charges including sedition and criminal conspiracy, and issued arrest warrants against Nikita Jacob, a lawyer, and Shantanu Muluk, an activist, who were granted pre-arrest bail.

The authorities alleged Ravi was the “key conspirator” in editing and sharing an online toolkit shared by Thunberg on social media, including Twitter, aimed at providing information to those seeking to peacefully support ongoing farmers’ protests. In granting bail to Ravi, the Delhi court said the evidence on record was “scanty and sketchy,” and that citizens cannot be jailed simply because they disagreed with government policies. It added: “The offense of sedition cannot be invoked to minister to the wounded vanity of governments.”

The government’s efforts were the latest to silence criticism and censor information related to protests and democratic opposition, including shutting down the internet at protest sites, preventing journalists from entering protest sites, filing baseless criminal charges against journalists reporting on protests, and using a draconian law to press social media companies to block critical content.

Delhi police said they had written to Google and other technology companies in February, seeking user information and activity logs associated with creating and sharing the toolkit. The police said they are also seeking information from the video conferencing application Zoom about those who attended a meeting about preparing the toolkit, and from WhatsApp about a group created to support farmers’ protests. Revealing protected information of a user exercising their rights to free expression and peaceful assembly would be inconsistent with companies’ responsibilities under the United Nations Guiding Principles on Business and Human Rights, the groups said.

On February 25, the Indian government announced new regulations under the Information Technology Act targeting internet intermediaries, including social media services, digital news services and curated video streaming sites. The government says the rules are aimed at curbing misuse of social media including for the spread of “fake news”. The rules allow greater governmental control over online content, threatens to weaken encryption, and would seriously undermine rights to privacy and freedom of expression online. The government should suspend the new rules, the groups said.

The Indian authorities should drop charges against Ravi and others accused for their alleged involvement in the document shared on social media, stop targeting activists involved in peaceful online expression, and cease seeking to censor social media and restricting internet access, the groups said.

Since November 2020, hundreds of thousands of farmers have been protesting on the outskirts of Delhi after the Bharatiya Janata Party (BJP)-led government enacted three laws that it said would reform the agriculture sector. Farmers say these laws will harm their livelihoods.

On January 26, violent clashes occurred between police and farmers who broke through police barricades to enter Delhi. The authorities then alleged an “international conspiracy” to defame India, filed cases against protest organisers and activists, and ordered Twitter to block nearly 1,200 accounts, including those of journalists and news organisations.

Human Rights Watch wrote to Google, Facebook, WhatsApp, Instagram and Zoom about recent government takedown and blocking orders and information sought by the government in the Disha Ravi case. Facebook, which also owns Instagram and WhatsApp, replied that while it could not comment on individual cases for privacy reasons, public reporting indicated that Ravi’s WhatsApp chats were obtained following her arrest, suggesting the police gained access to her mobile device after taking her into custody. No reply has been received from Google and Zoom.

Since January 31, the Ministry of Electronics and Information Technology has directed Twitter in several separate orders to shut down over 1,000 accounts under section 69A of the Information Technology Act, claiming they were spreading misinformation about farmers’ protests. Twitter initially complied but then said that it would not take action on accounts belonging to news media entities, journalists, activists, and politicians, posting that: “To do so, we believe, would violate their fundamental right to free expression under Indian law.”

Twitter’s decision to shut down some, but not all, accounts ordered by the Indian authorities has drawn criticism from the government, saying it was disappointed with the company’s response. The government also sent Twitter a notice of non-compliance, threatening to punish its India-based employees with fines and jail terms, in accordance with Indian law. YouTube, which is owned by Google, took down two songs about the farmers’ protests; it did not respond to a query from Human Rights Watch as to whether this was due to confidential government orders.

Companies, including social media platforms, have a responsibility to respect human rights independent of a government’s willingness to fulfill its human rights obligations. According to international standards, companies should “engage in prevention and mitigation strategies that respect principles of internationally recognised human rights to the greatest extent possible when faced with conflicting local law requirements.” They should interpret and implement legal demands as narrowly as possible, to ensure the least possible restriction on expression, notify users, seek clarification or modification from authorities, and explore all legal options for challenge.

Following the January 26 violence, authorities shut down mobile internet services for days at various protest sites and in numerous districts of Haryana and Uttar Pradesh states, as well as parts of the national capital territory of Delhi. India leads the world in internet shutdowns, with 121 in 2019 and ordering at least 109 in 2020 during the Covid-19 pandemic. It carried out a record 18-month internet shutdown in Jammu and Kashmir, which was finally lifted in February.

Shutting down the internet and seeking to censor online expression has become the Indian government’s default response to protests, the groups said. It violates India’s obligationsunder international human rights law, which requires any internet-based restrictions to be a necessary and proportionate response to a specific security concern. Officials should not use broad, indiscriminate shutdowns to curtail the flow of information or to harm people’s ability to freely assemble and express political views.

The Indian government should also comply with the Supreme Court decision directing it to publish all internet shutdown orders. The authorities should publish records of the review committee meetings and review the Telecom Network Suspension Rules of 2017 in an open public consultation.

The Indian government should also amend section 69A of the Information Technology Act and related rules to strengthen the due process requirements that must be met prior to any blocking of online content. Section 69A of the Information Technology (Amendment) Act of 2008 carries a punishment of fines and a prison term up to seven years if intermediaries fail to comply. The Indian government has not published its section 69A orders, claiming they are confidential, rarely notifies the original poster of the content of the censorship order, and does not seek independent review of its decisions. The amended rules should include a requirement to publish a copy of each blocking order, along with the reasons for blocking, and to notify users before they are blocked and allow them to appeal the government’s order.

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