Rajeev Chandrasekhar’s submission towards the IT Intermediary Guidelines (Amendment) Rules, 2018, outlines that while intermediaries ‘must be liable for unlawful and illegal content on their platforms, the approach to regulating them should be carefully thought through’ as more and more Indians get online. Read the whole submission here [pdf].

Key points in Chandrasekhar’s submission

  • He says that a one size fits all and brute force regulatory approaches should be avoided, for they may cause unintended censorship and fettering of free speech and innovation.
  • Chandrasekhar adds, “Information intermediaries are no longer the companies they were when intermediary liability laws first developed, and the role of platforms in society is changing.” He goes on to say that with AI and other tools, intermediaries have “capabilities of pre-emptively filtering the unlawful content than they were in the previous years.”
  • “Hence my contention that intermediaries must no longer enjoy the safe harbor exemption and must be made responsible for the content on their platforms to some extent.
  • Intermediaries must be treated differently based on their capacity and means to filter the content.

Chandrashekhar outlines the categories intermediaries can be divided into:

  1. ISPs
  2. Data processing and web hosting providers which transform data, prepare data for dissemination, or store data or content on the Internet for others
  3. Internet search engines and portals which aid in navigation on the Internet
  4. E-commerce intermediaries and online aggregators which enable online buying or selling
  5. Social Media and Messaging Platforms like Facebook, Twitter, WhatsApp etc (which are also described as Participative Networking Platforms and aid in creating content and social networking including Internet publishing and broadcasting platforms but do not themselves create or own the content being published or broadcast).”

With regards to ‘unlawful content and traceability’, Chandrasekhar’s suggestion says that intermediaries are not “mere conduits” anymore. Because they make conscious decisions about their design to yield certain kinds of content; closely study users and enable micro-target advertisements or sell user data to others, they can influence user behaviour.

“In summary they exercise significant power and influence and current regulations vis-à-vis these platforms lag their power and influence especially to be misused. Hence exempting intermediaries of this scale and capability under safe harbor regime is to stay within a bubble of unaffordable innocence,” he adds.

Chandrasekhar states that proactive content removal could lead to over-censorship but this can be addressed through regulation (without specifying how). He also adds the importance of competition in the market.

The changes to the IT Act

Earlier this month, the Ministry of IT and Electronics (MeitY) released a set of proposed changes to the rules which operationalize the IT Act. These rules govern how intermediaries are to behave under Section 79. Read the 5-page draft of the proposed rule changes here [pdf].

The major proposed amendments are

  • Traceability, and information within 72 hours: The new rules require platforms to introduce traceability to find where a piece of information originated. [Rule 3(5)]
  • Platforms are required to be registered under the Companies Act, have a physical address in the country, have a nodal officer who will cooperate with law enforcement agencies, etc. [Rule 3(7)]
  • Platforms have to pull down unlawful content within a shorter duration of 24 hours from the earlier 36 hours. They also have to keep records of the “unlawful activity” for 180 days – double the period of 90 days in the 2011 rules – as required by the court or government agencies [Rule 3(8)]
  • Platforms have to deploy tools to proactively identify, remove and disable public access to unlawful information or content. [Rule 3(9)]
  • The new rules insert a monthly requirement on platforms to inform users of the platforms’ right to terminate usage rights and to remove non-compliant information at their own discretion. [Rule 3(4)]

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Comments to MeitY can be submitted here: Gccyberlaw[at]meity[dot]gov[dot]in / Pkumar[at]meity[dot]gov[dot]in / dhawal[at]gov[dot]in till 31 January. MeitY will publish the comments on its website on February 4, after which it will invites counter-comments until February 14.