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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. It states that Rule 3(2) is a broad, excessive provision which will not pass the test of proportionality laid down in K.S. Puttaswamy v. UOI.

The Dialogue states that Rule 3(2) risks misinterpretation as the draft rules have not identified any proposed metrics to determine how such online content may harm public safety and critical information infrastructure. The submission argues that this is in contravention to the ruling by the Supreme Court in Shreya Singhal.

Lack of Definitional Clarity

NIPFP: “We believe that the aforementioned list of information under Rule 3(2) (that intermediaries are required to caution users against publishing) is arbitrary and vague. The list of proscribed information includes categories such as blasphemy, hateful or disparaging content.”

Global Network Initiative’s submission argues that the Amendment lacks clarity as to which government agencies are appropriately empowered to exercise the power to user data requests and content removal under Rules 3(5) and 3(8). It also asks for clarity on what content would qualify for removal under Rule 3(2).

Election Commission on Misuse of Platforms

The Election Commission, in the initial submission period, expressed concerns regarding a possibility of misuse of platforms run by intermediaries to influence elections. They have asked for a clause to be incorporated to the proposed Rules under Rule 3(2) stating that “violation of any of the provisions of election law or/and directions of the Election Commission, during the period of any election”.

SFLC counters this submission, stating that the restriction recommended by the Election Commission is excessive. “The misuse of intermediary platforms for influencing elections in nation states is a real problem, which warrants urgent attention, a recommendation to prohibit content on platforms which violates ‘any provision of election law or directions of election commission, during the election period’ will have a chilling effect on speech and might disturb the sanctity of free and fair election”.

Asia Internet Coalition state that the Election Commission goes over and beyond the proposed amendments. The terms “any provision of election law” and “directions of the ECI” are not precise phrases and vague in nature. Using vague phrases for restricting free speech, they argue, is not constitutionally permissible.

IAMAI: It suggests that the terms “any provision of election law” and “directions of the ECI” constitute remain vague, with the proposed rule infringing on permissible speech, and therefore unconstitutional. They state that the Supreme Court has held that free speech can only be restricted based the grounds in Article 19(2) of the Constitution of India, and that “restrictions on the freedom of speech must be couched in the narrowest possible terms”.

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