31 January 2019

At the end of December 2018, the Ministry of Electronics and Information Technology (MeitY) of the Government of India invited stakeholders to provide their comments and suggestions on the Draft Intermediaries Guidelines (Amendment) Rules, 2018 by 31 January 2019. The Draft Rules seek to amend existing guidelines that lay out the conditions online intermediaries need to fulfil in order to qualify for safe-harbour protection.

Unfortunately, many of the proposed amendments pose severe risks for freedom of expression and privacy on the Internet in India. The Internet Democracy Project has joined a coalition of organisations and concerned citizens in India in submitting a joint letter to MeitY that draws attention to these concerns. You can find the full text of the letter below.

January 31, 2019

Shri Ajay Prakash Sawhney,

Secretary, Ministry of Electronics and Information Technology,

Government of India,

Electronics Niketan, 6, CGO Complex,

Lodhi Road, New Delhi - 110003

secretary@meity.gov.in

Sir,

Sub: Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018

We write to you to express our concern on certain provisions of the Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018 (“the Draft Rules”), recently issued by Ministry of Electronics and Information Technology (“MeitY”). These Draft Rules seek to amend existing Intermediaries Guidelines Rules, 2011 and emanate from Section 79 of Information Technology Act, 2000 which provides safe-harbour protection to intermediaries from liability due to third party content.

Following are some critical issues with the Draft Rules:

1. Disproportionate use of Government Regulation

The Draft Rules, despite being targeted primarily on social media platforms and messaging applications, would apply equally to all intermediaries including TSPs, ISPs, Cyber Cafes etc. This is a disproportionate use of government regulation.

2. Vague Terms Resulting in ‘Chilling Effect’

One of the grounds for the Supreme Court striking down Section 66A of the IT Act, 2000 in Shreya Singhal was the vagueness of the terms used in the provision, like - offensive, menacing and dangerous - as these disproportionately invaded the right of free speech. However, words with a similar level of vagueness, such as ‘grossly harmful, harassing and hateful’ still exist in the Draft Rules.

3. Privacy and Breaking Encryption

The Draft Rules require intermediaries to include a traceability feature to assist law enforcement agencies. Such a traceability requirement could lead to breaking of encryption on apps such as WhatsApp and Signal, and this will be a major threat to the privacy rights of citizens as enshrined in the Puttaswamy judgement of the Supreme Court. Addition of a requirement of traceability in a subordinate legislation is also beyond the rule making power of the Government.

4. Pre-Censorship and Automated Content Filtering

The Draft Rules require intermediaries to deploy automated tools for proactively filtering unlawful content on their platforms. This would result in a pre-censorship regime, violating the right to free speech and expression, where AI technology would crawl through social media to filter and remove content which it deems ‘unlawful’.

We request you to protect the principles of open and accessible internet, safe harbour granted to intermediaries and the fundamental rights of privacy and free speech of the internet users in India. While being cognizant of national security interests, we appeal for a less-invasive and proportional means of regulation of the internet.

Sincerely,

Signatories

Organisations:

Alternate Law Forum

Digital Empowerment Foundation

Esya Centre

Free Software Foundation Tamil Nadu

Free Software Movement of India

Free Software Movement Karnataka

HasGeek

Internet Democracy Project

IT for Change

Point of View

Software Freedom Law Centre, India (SFLC.in)

Concerned Citizens:

Abhayraj Naik - Researcher, Bengaluru

Faisal Farooqui - Founder & CEO, Mouthshut.com

Geeta Seshu - Journalist and co-Founder, FreeSpeechCollective

Karma Paljor - Editor-in-Chief, EastMojo

Nikhil Pahwa - Founder, MediaNama.com

Pankaj S Shah - President | Association of System Integrators & Retailers in Technology

Prof. Rahul De - Indian Institute of Management, Bangalore

Shamnad Basheer - Founder, SpicyIP

Sivasubramanian Muthusamy - Internet Society India Chennai

Prof. Shishir K Jha - IIT - Bombay

Sridhar Pabbisetty - Public Policy and Urban Governance Specialist

Vikram Vincent - Research Scholar, IIT-Bombay

For further communications: Biju K Nair Executive Director, SFLC.in mail@sflc.in


Related Issues