New Delhi: While the Centre on Monday appealed to the Supreme Court for more time to hold inter-ministerial discussions on the effective regulation of social media platforms like WhatsApp, YouTube, and Facebook, civil society experts and advocates of the internet held parallel discussions on the need to protect constitutional rights and consumer choice on the internet.
The Dialogue and Software Freedom Law Center (SFLC), tech policy think-tanks based out of New Delhi, got together civil society experts, internet policy leaders, media persons and lawyers last week to discuss the role of intermediaries – entities that facilitate the flow of data across the Internet – towards curbing hate speech, lynching and fake news.
These discussions were held in light of the amendments proposed by the Centre on December 24, 2018, to hold intermediaries accountable for the content shared on their platforms.
The Ministry of Electronics and Information Technology last year released the ‘Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018’ to amend existing rules. The changes proposed included: tracing out of originator of information for assistance to law, deployment of automated tools for proactive filtering of unlawful content, takedown of illegal content within 24 hours and mandatory incorporation of companies with 50 lakh plus users.
Section 2(1) (w) of the Indian IT Act includes “telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, on-line market places, and cyber café” as intermediaries.
The discussions at the round table raised questions around censorship, freedom of speech and expression on the internet, as well as issues around the right to privacy as guaranteed by the Constitution.
Kazim Rizvi, director at The Dialogue, was of the view that we must look at an approach that balances both national security and privacy. It was emphasized that both issues need to work in tandem and one cannot go without the other. “Stringent regulations that limit user behaviour will gravely impact the fundamental rights of the people of India,” he said.
However, Shashank Mohan at the SFLC sought a little perspective asking: “Are we trying to solve societal issues through tech companies?” Experts at the SFLC also recommended “the categorisation of content and not categorisations of intermediary” like a regulatory sandbox to solve the problem of unlawful content.
This round table assumes significance given the Centre’s affidavit submitted to the apex court highlighting the internet as a “potent tool to cause unimaginable disruption to the democratic polity”. It added that the 2011 rules need to be revised for “effective regulation of intermediaries keeping in view the ever-growing threats to individual rights and nation’s integrity, sovereignty and security”.
Departing from the Centre’s insistence on regulation, however, Ashish Agarwal, head of public policy at NASSCOM hit out at the proposal to use automated tools saying “automation for solving problem should not be the norm”.
“Instead, we recommend that automation should be replaced with an appropriate mechanism which gives liberty to intermediaries to do what is required. Wherever you use automation, you are not only giving a recipe for bias but also a license to invade privacy,” he added.
The ‘due diligence’ requirement for intermediaries for claiming safe-harbour also received considerable attention during the discussions. The Centre had incorporated the requirements to publish rules/regulations, user agreements; terms and conditions to specify prohibited content; strict notice and takedown process; duty to report cybersecurity incidents among others, via an amendment to the IT Act in 2008.
Udbhav Tiwari, public policy advisor at Mozilla, addressed the need to “re-evaluate the due diligence standards for intermediaries”. He said that there are certain process fixes that can improve the situation such as transparency to the government in terms of the takedown of content.
“The current guidelines will not be able to solve the problem and if implemented, it is most likely that it remains on paper while the actual problems still persist,” he added.
On issues related to tracing of content on platforms like WhatsApp, the panel of speakers came to a consensus that in order to have traceability there needs to be information about each piece of content that enters the platform. Traceability and end to end encryption are not technically possible.
Here, Tuhina Joshi, an associate at Ikigai Law, an award-winning technology-focused law firm in Delhi, stated the importance of understanding the principles of the issues that we face. Suggesting a cost benefit analysis, she said that just adopting a tentative solution to make intermediaries responsible for proactively monitoring content will only stifle growth.
Also on the agenda was the impact of the local incorporation requirements on digital platforms. Policy experts were of the opinion that “permanent establishment” in India may undermine the most powerful benefits of the Internet of “lowering of market access entry barriers for businesses, start-ups, and individuals”.
India’s leadership in the growth of digital platforms in South Asia, and its laws may hurt Indian digital businesses in case other countries retaliate, experts added.
At the top of recommendations that the round table came up with for the Draft rules was the need to appoint a nodal person who could act as an authorised representative of the intermediary to coordinate with law enforcement agencies.
It was also suggested that the government should define different takedown timelines and procedures for different types of content depending on nature and severity.
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