Indian tech firms support most of the proposals while American players call the rules arbitrary
BENGALURU: Indian and US technology companies were sharply opposed in their responses to the government’s proposal to amend intermediary guidelines that dilute safe harbours given to internet platforms in order to curb fake news and rumours.
Reliance Jio, Sharechat and Indiatech.org, which represents Indian companies such as Hike, Ola and MakeMyTrip, supported most of the amendments, including government takedown requests, traceability of messages and local incorporation. The Internet and Mobile Association of India (IAMAI), which lobbies for Facebook, Google and Twitter, called the rules arbitrary, a violation of the right to privacy and financially unsound. They were responding to amendments proposed by the Ministry of Electronics and IT (MeitY).
MeitY proposes to amend Information Technology (Intermediaries Guidelines) Rules under Section 79 of the Information Technology Act.
The IT Act currently provides a legal shield for technology intermediaries. The Supreme Court has held that intermediaries should not be obliged to act suo moto without due process in removing content.
In December, draft amendments to the IT Act rules first notified in 2011, mandated companies to trace and report the origin of messages within 72 hours of receiving a complaint from law enforcement agencies. They also sought to “disable access” within 24 hours to content deemed defamatory or against national security and other clauses under Article 19 (2) of the constitution.
Besides, all platforms with more than five million users will be required to have a registered entity in India under the Companies Act.
They will also have to appoint a nodal officer in the country to deal with law enforcement agencies round the clock and send communications to users once a month about their privacy policies. Activists said the guidelines would turn India into a surveillance state.
Jio, one of India’s largest telecom and technology companies, said there is a need to balance freedom of speech with the obligation to be responsible and accountable, so platforms do not become conduits for unlawful activities that incite hatred and spark terrorism and extremism.
Without naming WhatsApp, Jio said many over-the-top (OTT) companies employ end-to-end encryption under the guise of providing better security to users.
“We strongly recommended that (the) intermediary should enable tracing out of the originator of such information on its platform, which will help government agencies identify the originator of such information of such misleading information in order to maintain cyber security, required for national security and prevention of offence,” Jio said in its response.
It said the government should ignore protests that these rules would violate freedom of speech and expression.
Sharechat, a homegrown social media platform that functions in 14 languages, said it welcomed the proposal for mandatory local incorporation to “provide greater responsibility to offshore, social media applications that are generating and distributing large volumes of content to Indian citizens in an unregulated manner.” It, however, said law enforcement assistance and takedown requests should have responses that depend on the threat level.
Terrorism-related content must be dealt with in three hours, riot-related content within 72 hours and the rest within seven days, it suggested.
Sharechat and Indiatech.org recommended that the local incorporation requirement threshold should be brought down from the proposed minimum of five million users to one million users.
Indiatech.org recommended that the intermediary entity registered in India should provide services directly to users, to ensure it can be approached over any breaches and non-compliances.
Lobby group Nasscom and Amazon Web Services (AWS) said the rules must apply only to social media companies and not to technology intermediaries such as cloud platforms and the IT and business process management (BPM) sectors.
AWS said such intermediaries will have to bear the cost of complying with provisions that don’t apply to them.
Submissions by IAMAI and the US India Business Council (USIBC) contrasted with those by Indian technology companies.
“The obligation on intermediaries to trace such communications would be a violation of the right to privacy recognized by the Supreme Court in the case KS Puttaswamy vs Union of India, which is an important fundamental right exercised by the users of any platform,” IAMAI stated.
USIBC also noted that absolute traceability and attribution is not technically feasible in all instances and to protect privacy and prevent cybersecurity breaches, some products utilise encryption features that preclude or severely limit the ability of intermediaries to track and trace content.
IAMAI added that the 72-hour deadline to assist law enforcement is arbitrary and the revision of the takedown notice mechanism is a departure from the Supreme Court judgment as it explicitly expands such mechanisms beyond the ruling.
USIBC called the localisation requirement burdensome and unnecessary.
“We strongly recommend it be struck because it will result in some internet services no longer being offered in India and it has a discriminatory impact on small and medium-sized enterprises,” USIBC said.