Intermediary Liability: What STAR India said in its submission to MeitY

Star India’s response to MeitY’s Draft “The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018” outlines its concerns about the definitions of an intermediary, safe harbour and the content takedown notifications. These are all the important points the media company raised in its submission. These points have been paraphrased unless explicitly quoted.

Piracy and intellectual property online under Rule 3(9)

On piracy

• Star India says that with the growth of internet consumption, “tremendous increase has been witnessed in online piracy, which has caused massive losses to digital content producers and artists.”
• According to industry estimates, pirates make 35% more than the actual producers of content: “Much of this revenue has been on the back of pirated content being uploaded on so-called “user-generated” content platforms, social media platforms, torrent sites and others which enable selling advertising to make money off it.”
• “The content industry has been making attempts at curbing this massive leakage. However, it runs into rough weather when dealing with online platforms, most of whom qualify to be protected as ‘intermediaries’”

Misuse of the present law:

• “Several intermediaries have misused the provisions of Section 79 of the IT Act and the Rules by wrongly interpreting the provisions to mean that they have complete immunity from compliance with Indian laws and enforcement agencies.”
• Star India said that intermediaries have built ad-based businesses using third-party copyrighted content, adding that illegal use of copyrighted content needs to be controlled: “While some [intermediaries] may have collaborated with content creators, the lack of legal provisions under the current Section 79 of the IT Act and Rules mandating them to actively screen and remove infringing content is the lacuna that needs to be plugged with immediate effect…”

Need for inclusion of piracy as “unlawful information”

• According to Star India, the proposed Rule 3(9) will fulfil its intended purpose “only if a corresponding amendment is made to clarify that the phrase “unlawful information” refers to information including the categories mentioned in Rule 2 which encompasses information which “infringes any patent, trademark, copyright or other proprietary rights.”
• Hence, Star India said that the proposed rule should read – “The Intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content including information specified in sub-clauses (a) to (l) of Rule 3(2)”.
• The company acknowledges that the current system of ‘John Doe Orders’ are “post-facto in nature and title/content specific and do nothing to pre-empt the uploading of infringing content”, hence necessitating a further amendment.

Registration and local office requirements under Rule 3(7)

• According to Star India, this provision is not required: “one does not need to create a physical or even corporate presence in jurisdiction where the actual service is provisioned.”
• Instead, Star India recommends that intermediaries with over 50 lakh users in India “shall appoint in India a nodal person of contact and alternate senior designated functionary, for 24×7 coordination with law enforcement agencies and officers to ensure compliance to their orders/requisitions made in accordance with provisions of law or rules.”

On access to information and content takedown under Rule 3(5) and 3 (8)

• Star India said that while it agrees on the need for such information/assistance concerning national or cyber security, it recommends that “the powers to request for such information or removal of unlawful content be restricted only to court of competent jurisdiction.”

Read submissions by other stakeholders here.