This article summarises our observations on the impact the proposed amendments to intermediary guidelines are likely to have.
It is a selected excerpt from our series tracking the Evolution of Safe Harbour provisions in India, available here. A further excerpt outlining the current statutory framework for availing Safe Harbour protection under the IT Act and the areas of challenge in the existing law is available here.
In 2018, the government released the Information Technology [Intermediary Guidelines (Amendment) Rules], 2018 (“Draft Guidelines”)[1]. These Draft Guidelines propose to increase due diligence standards intermediaries must comply with to avail Safe Harbour protection. The proposed amendments to the Safe Harbour provisions amend the Intermediary Guidelines alone and do not change any provision of the IT Act itself. Nevertheless, they impose far reaching onerous provisions on intermediaries. These have been summarised and contrasted with the corresponding earlier requirements below-
| Current Obligation | Proposed Obligation | Concerns with Proposed Obligation |
| Terms of Use: Intermediaries are required to publish rules and regulations, privacy policy and/or user agreement for use and access to their portals.
Such Rules must warn users not to publish certain type of content which has been listed (“Prohibited Content”) in the Intermediary Guidelines. |
Terms of Use: The list of Prohibited Content has been expanded to include content which promotes consumption of tobacco or intoxicating products and content which threatens the critical infrastructure of India.
An intermediary will also be required to warn its users at least once a month, of their need to comply with the intermediary’s terms of use.
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| No equivalent requirement in current Intermediary Guidelines. | Mandatory Assistance to State Agencies: Intermediaries are required to provide assistance requested by “any government agency”, within 72 hours of such request being made. This request may be for the security of the State; cyber security; the purpose of investigation, detection, prosecution or prevention of offence, or for protection or cyber security and matters connected with or incidental thereto.
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| Trace the publisher of information: The intermediaries, upon receiving a request by the authorised agency, will be required to trace the originator of any information. |
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| Local Presence Requirement: Intermediaries with above 50 Lakh users are required to be incorporated in India and permanent, registered, physical address in India. They are also required to have a nodal person who shall be available 24X7 to provide assistance to State agencies. |
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| Take-Down Requirement: Intermediaries are required to take-down Prohibited Content within 36 hours of receiving “actual knowledge” of the existence of such content on their platform. They are required to preserve records relating to such content for 90 days to facilitate investigation. | Take-Down Requirement: Intermediaries are required to take-down content only upon receiving actual knowledge by way of a court order or upon being notified by appropriate government agency.
Courts or Government agencies may order content to be taken-down only if such content is not in the interest of the sovereignty and integrity of India; security of the State; friendly relations with other States; public order, decency or morality; or in relation to contempt of court, defamation or incitement of any offence. Such take-down must occur within 24 hours of the receipt of the order and/or notification. The intermediary will have to preserve the records for a minimum of 180 days.
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| No equivalent requirement in current Intermediary Guidelines. | Proactive Monitoring of Content: Intermediaries are required to deploy technology based automated tools or appropriate mechanisms with appropriate controls to proactively identify and remove access to unlawful content. |
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Authored by Tanya Sadana, Senior Associate Ikigai Law with inputs from Anirudh Rastogi and Aman Taneja
References –
[1] Ministry of electronics and information technology, the Information Technology [Intermediary Guidelines (Amendment) Rules] 2018, available at https://www.meity.gov.in/writereaddata/files/Draft_Intermediary_Amendment_24122018.pdf.
[2] J. Malcolm, Users Around the World Reject Europe’s Upload Filtering Proposal, available at https://www.eff.org/deeplinks/2016/11/users-around-world-reject-europes-upload-filtering-proposal.
[3] In Sabu Mathew George v. Union of India, (2017) 7 SCC 657, it was submitted by the respondent intermediaries that content which violated the PCPNDT Act could be removed only upon being brought to their notice. Even such limited blocking has not seen much success; Legally India, Roundup of Sabu Mathew George vs. Union of India: Intermediary liability and the ‘doctrine of auto-block’, available at https://www.legallyindia.com/views/entry/roundup-of-sabu-mathew-george-vs-union-of-india-intermediary-liability-and-the-doctrine-of-auto-block.
