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#NAMA: Proactive monitoring can lead to mass private surveillance; who decides what is unlawful content?

"If all intermediaries proactively monitor content, there will be mass-scale private surveillance, given the entire Intermediary Rules amendment," said Sarvjeet Singh from the Centre for Communications Governance, NLU Delhi. "This also totally violates Puttaswamy judgement," he added. "Mandating the use of automated tools to carry out proactive monitoring of content can result in a prior-restraint regime," said Prasanna S., an advocate. He was speaking at MediaNama’s discussion on Intermediary Liability in Delhi on October 23, conducted in partnership with CCG-NLU Delhi, with support from Google, Facebook, and the Friedrich Naumann Foundation. Proactive takedowns may blur the line between a passive and an active intermediary, and goes against the very nature of what an intermediary is, according to Tanya Sadana of Ikigai Law. A intermediary is merely a passive transmitter of information and has no active knowledge; proactive monitoring is "antithetical to its very being". “You cannot have Safe Harbour provision based on [platforms] having no knowledge, and then impose a liability of removing the Safe Harbour provision because you are not proactively monitoring content. You're damned if you do, and damned if you don't.” — Tanya Sadana, Ikigai Law [caption id="attachment_206784" align="aligncenter" width="1200"] Sarvjeet Singh, CCG @ NLU Delhi[/caption] Effectiveness of AI in tackling problematic content The draft Intermediary Rules mandate proactive monitoring and removal of unlawful content, using automated tools or appropriate mechanisms. But the effectiveness of AI — which is an automated tool — depends on the quantity and quality of data that is fed into the algorithm. This can be a…

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