India’s new internet law hits first legal challenge

The High Court of Delhi said on Tuesday it would hear the first legal challenges to India’s sweeping new internet rules that have shaken Big Tech and stoked concerns over free speech and privacy.

The Foundation for Independent Journalism will argue in court that the rules are an “over-reach” that give prime minister Narendra Modi’s government power to “virtually dictate content”. The non-profit organisation publishes a digital news website called The Wire.

Legal experts say that the case, set for hearing on April 16, will kick off a wave of legal challenges against the expansive rules, which directly impact WhatsApp, Facebook and Twitter’s operations in India, along with streaming companies such as Netflix and Amazon, and digital news publishers.

The rules require companies to take down content that the government deems offensive within 36 hours or face penalties. They stipulate companies must appoint officers resident in India who can handle complaints, and in effect order social media companies to break encryption to identify the “first originator” of contentious messages. Streaming platforms and news media are subject to an oversight mechanism headed by a central government committee.

Taken together, the rules help India exercise greater surveillance and censorship of the internet at a time it is cracking down on dissent, said Raman Chima, Asia Pacific policy director of Access Now, a non-profit group defending digital rights. “In reality, the government has given itself significant new powers and ways to pressure non-government or private platforms,” said Chima. “This is a push for more control.”

India’s new rules comes as the “Five Eyes” intelligence alliance is seeking access to encrypted material for law enforcement agencies. It puts more pressure on WhatsApp, which is also battling “traceability” legislation in Brazil.

US companies in India have said that they are still studying the rules before deciding a course of action. “Facebook is committed to people’s ability to freely and safely express themselves on our platforms,” said the company. “The details of rules like these matter and we will carefully study the new rules.”

In a March interview on the Big Technology podcast, WhatsApp head Will Cathcart said he may be forced to leave the market, the app’s largest with more than 400m users. “We face this in a bunch of places, and we’ve been blocked,” he said. “There’s a lot of places where we take the risk every day that we may just not be able to operate tomorrow.”

Software developers said it was unlikely WhatsApp and others could introduce a feature to placate Indian authorities. “It is technically impossible,” said Kunal Das, a developer of SecureDrop at the non-profit Freedom of the Press Foundation.

But government officials maintained that companies should be able to tweak its app in order to comply with its requests. “The government does not want to know about the original message, they just want to know who originated that message. There is a distinction between the two,” said Amit Khare, Ministry of Information and Broadcasting secretary, in an interview with the Financial Times. “Not all encryption should be broken.”

Nikhil Narendran, a partner at Trilegal who advises foreign tech companies in India, said companies were left with these options: negotiate with the government, modify their apps, go to court, or exit the country and retreat from one of their most promising markets.

Companies are reluctant to go to court, said Narendran, explaining that they fear the legal battle will be drawn out. “Facebook and WhatsApp are not really litigious in India, they like to work with the government.”

New Delhi has been working on the new rules for years and released them following a stand-off with Twitter over taking down posts connected to a farmers’ protest against Modi’s government.

India has been calling for greater regulation of tech giants as it seeks to promote its own homegrown tech companies. Tejasvi Surya, a politician from Modi’s ruling party, said India needed the rules “to keep our digital dream safe” while Paytm chief executive Vijay Shekhar Sharma has said the rules are necessary to counter “big tech guerrillas.”

But critics of the new rules say their real target is to restrict free speech. The government has already started issuing notices to digital news organisations to comply with the laws.

“The government has given itself emergency powers to take down news content,” said MK Venu, founding editor of The Wire, who is challenging the rules in court. “This is unbelievable.”