Information Technology Intermediary Guidelines (Amendment) Rules, 2018

The draft Information Technology [Intermediary Guidelines (Amendment) Rules] 2018[1] seeks to amend India's Intermediary Guidelines Rules 2011[lower-alpha 1] by making intermediaries legally required to provide time-bound assistance to any government agency, provide traceability requirements, as well as deploy "technology-based automated tools to identify and remove public access to unlawful information". Intermediaries with more than 5,000,000 users must set up a company in India. The changes also include prohibited hosting of another category of content, i.e. ‘public health or safety’.[2][3][4] The draft Rules have been framed under Section 79 of the Information Technology Act, 2000 which covers intermediary liability.[5]

The Indian Government’s Ministry of Electronics and Information Technology (MeitY) had invited comments on proposed amendments early in 2019. The amendments were seen by many to "overstep the aforesaid intention sparking concerns of violating free speech and privacy rights of individuals."[6] It is seen that "the guidelines suffer with excessive delegation of powers and shift the burden of responsibility of identification of unlawful content from a government/ judiciary to intermediaries."[7] A total of 171 comments were received by MeitY; all of the comments were published for counter comments.[8][9]

On 21 October 2019, MeitY asked the court for three months’ time for finalisation of the Intermediary Rules, 2018.[8]

About

In the Monsoon session of the Parliament in 2018 a motion on “Misuse of social media platforms and spreading of fake news” was admitted. The Minister for Electronics and IT, accordingly made a detailed statement of the "resolve of the Government to strengthen the legal framework and make the social media platforms accountable under the law". MeitY then prepared the draft Information Technology (Intermediary Guidelines) Rules 2018 to replace the 2011 rules.[10] The Information Technology Act, 2000 provided that intermediaries are protected liabilities in some cases.[11] The 2018 Rules sought to elaborate the liabilities and responsibilities of the intermediaries in a better way.[11] Further the draft Rules have been made "in order to prevent spreading of fake news, curb obscene information on the internet, prevent misuse of social-media platforms and to provide security to the users."[11] The move followed a notice issued to WhatsApp in July 2018, warning it against helping to spread fake news and look on as a "mute spectator".[12] On 5 January 2019 a government open house was held to discuss the Rules.[13] Further, ten days were given for counter comments, until 28 January.[14]

On 21 September 2019 the Centre informed the Madras High Court bench under Justice M Sathyanarayanan that deliberations on the Draft Rules 2018 had been completed.[15] Facebook has written a plea to transfer the matter to the Supreme Court.[15]

Concerns

Various issues have been pointed out with the rules such as restriction of free speech, unreasonable requirements such as automatic identification and removal of content, and lack of elaboration on how the five million users will be calculated.[2] Questions raised included if "intermediaries" include online media portals, raised by Free Software Movement of India.[16] Mozilla (Firefox), also raised issues with the draft Rules.[14] Wikimedia Foundation has said that the Wikipedia model and associated Wikis would be "severely disrupted" by the intermediary guidelines that will be incorporated soon.[4] The Foundation wrote a letter to the IT Minister for the same expressing deep concern with the proposed changes.[4][17][18] BSA (The Software Alliance) wrote to MeitY to "exclude enterprise cloud service providers" from the scope of the Rules and to remove the filtering obligations.[19]

Centre for Internet and Society has raised concerns with the draft rules and has asked for changes such as that draft Rule 3(2), Rule 3(4), Rule 3(5), Rule 3(10) be completely deleted.[20] Divij Joshi, Tech Policy Fellow at Mozilla, also recommends that draft Rule 3(5) be deleted and that "requirement to proactively identify and remove access to all 'unlawful content' is vague and overbroad."[21][22]

A joint letter written by a group of experts from research, academia, and media, including Faisal Farooqui, Karma Paljor, Nikhil Pahwa, Shamnad Basheer and professors from IIM Bangalore and IIT Bombay, and organisations including Free Software Foundation Tamil Nadu, Free Software Movement of India, Free Software Movement Karnataka and Software Freedom Law Centre, India, to MeitY, pointed out various issues the Rules could causes such as the traceability requirements interfering with the privacy rights of citizens.[lower-alpha 2][23]

See also

References

Notes
  1. The IT Act elaborates that intermediaries must observe due diligence while discharging their duties, and also observe such other guidelines as prescribed by the Central Government. Accordingly, the Information Technology (Intermediaries Guidelines) Rules, 2011 came into being.
  2. Say the rights to privacy enshrined in the Puttaswamy judgement of the Supreme Court.

Citations
  1. The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018. Ministry of Electronics and Information Technology, Government of India.
  2. "Draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018". PRS Legislative Research. 30 January 2019. Retrieved 2 January 2020.
  3. Ahaskar, Abhijit (12 February 2019). "What the government's draft IT intermediary guidelines say". Livemint. Retrieved 2 January 2020.
  4. "Wikipedia writes to IT Minister: New govt guidelines will severely disrupt our model". The Indian Express. 30 December 2019. Retrieved 2 January 2020.
  5. T., Prashant Reddy (28 December 2018). "Liability, Not Encryption, Is What India's New Intermediary Regulations Are Trying to Fix". The Wire. Retrieved 4 January 2020. Author is a Senior Resident Fellow at the Vidhi Centre for Legal Policy, New Delhi.
  6. Kittane, Purushotham (15 March 2019). "Under India's New Intermediary Rules, Fundamental Rights Take Backstage". OHRH, Faculty of Law, University of Oxford. Retrieved 4 January 2020.
  7. Consumer Unity and Trust Society (2019) "Counter Comments On The Submissions Received By Ministry Of Electronics And Information Technology On ‘The Information Technology Intermediary Guidelines (Amendment) Rules, 2018’"
  8. "Stricter social media regulations in India to be finalised in three months: MeitY- Technology News, Firstpost". Firstpost Tech2. 21 October 2019. Retrieved 4 January 2020.
  9. Basu, Arindrajit (19 February 2019). "Resurrecting the marketplace of ideas". The Hindu @businessline. Retrieved 4 January 2020.
  10. "Comments / suggestions invited on Draft of "The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018". Ministry of Electronics and Information Technology, Government of India.
  11. "Analysis Of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 - Media, Telecoms, IT, Entertainment - India". www.mondaq.com. Retrieved 4 January 2020.
  12. Sonkar, Siddharth; Tarafder, Agnidipto (26 December 2018). "Unclear understanding of 'unlawful content' may end up curbing free speech". Business Standard India. Retrieved 4 January 2020.
  13. "Government to hold open house on intermediary guidelines on January 5; publish comments online". The Economic Times. 2 January 2019. Retrieved 2 January 2020.
  14. "Legal 'hole' in online draft". Telegraph India. Retrieved 4 January 2020.
  15. S, Mohamed Imranullah (21 September 2019). "Draft rules to regulate social media ready: Government". The Hindu. ISSN 0971-751X. Retrieved 4 January 2020.
  16. "Do 'intermediaries' include online media portals, asks FSMI". The New Indian Express. 14 February 2019. Retrieved 4 January 2020.
  17. "Opinion | Wikipedia must stay open". Livemint. 30 December 2019. Retrieved 2 January 2020.
  18. Singh, Manish (27 December 2019). "Wikimedia Foundation expresses deep concerns about India's proposed intermediary liability rules". TechCrunch. Retrieved 2 January 2020.
  19. BSA The Software Alliance (31 January 2019). BSA Submission on Draft Information Technology [Intermediary Guidelines (Amendment) Rules] 2018
  20. Gurshabad Grover et al (31 January 2019). Response to the Draft of The Information Technology [Intermediary Guidelines (Amendment) Rules] 2018. Centre for Internet and Society (India)
  21. Joshi, Divij (2019). "Towards a Safer Social Media – Submissions to the Ministry of Information and Technology, Government of India, on the Draft Information Technology Intermediary Guidelines (Amendment) Rules, 2018". SSRN Electronic Journal. doi:10.2139/ssrn.3326368. ISSN 1556-5068.
  22. "Meet our Fellows". Mozilla Foundation. Retrieved 14 June 2020.
  23. Khetarpal, Sonal (6 February 2019). "Draft Information Technology rules: Experts write to MeitY, highlight key concerns". Business Today. Retrieved 4 January 2020.

Further reading

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