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Intermediary Liability Amendment: Civil society Counter Comments on ‘Unlawful Content’

Earlier this year MEITY released a draft of an Amendment to the Intermediary Guidelines for public consultation. The consultation included a counter-comment period, where a number of civil society organisations and researchers have made arguments with specific reference to Rule 3, which details the procedures and regulations for intermediaries in order to monitor 'unlawful content'. The Rule requires an intermediary to disable access to content violating the Rule, and assist the government in tracing the origin of the content. The submissions argue that this provision is excessive and unconstitutional, and will lead to chilling effect on free speech. IFF has used the Shreya Singhal judgment to support this argument. The Election Commission has recommended inclusion of content in violation of direction from the Commission as 'unlawful content'. Counter comments have suggested that this recommendation is vague and in violation of Article 19(2) of the Constitution. Below is a summary of what organisations are arguing in their submissions. Rule 3(2) in violation of Supreme Court orders Internet Freedom Foundation submitted that the proposed changes under Rule 3(2) of the Amendment are unconstitutional and in violation of Supreme Court’s judgement in Shreya Singhal v. UOI, prohibiting the delegation of law enforcement to intermediaries. “Even if the language in the draft rules is made more specific, we believe that the proposals themselves are disturbing in how they would allow for an authoritarian style of restriction on the privacy and free expression rights of Indians.” Freedom Software Movement of India argues against the introduction of the provision.…

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