Regulating intermediaries: From ‘safe harbour’ to ‘rocky shores’?

These guidelines open a Pandora’s box of potential issues, including infringement upon basic fundamental rights such as the right to privacy and the freedom of speech, and have the potential to stifle innovation and healthy competition.

Regulating intermediaries: From ‘safe harbour’ to ‘rocky shores’?
The guidelines propose a mandate for intermediaries to moderate their content and hold them liable for information transmitted or shared on their platforms.

Don’t shoot the messenger” is a well-accepted admonition—it’s been around since even before the age of Shakespeare. A messenger’s role has always been to deliver communication from an origin to a destination, without tampering with the content. A messenger acts as an intermediary. In this digital era, intermediaries are any online platform that connect users together. This encompasses a vast pool of organisations including news aggregators, Twitter, YouTube, food delivery apps, taxi aggregators, telecommunications companies, and even Quora, Reddit and more. Any platform that enables point-to-point communication and crowdsourcing of content is an intermediary.

Keeping this role of intermediaries as mere ‘facilitators of communication’ in mind, the Indian Information Technology (IT) Act of 2000 wisely incorporated provisions for ‘safe harbour’ of intermediaries, or digital messengers of communication. This excellent decision ensured we complied with fundamental rights granted to every Indian citizen—the right to privacy and the freedom of speech.

However, in 2018, the ministry of electronics and information technology (MeitY) released the draft IT rules that impose greater regulations on intermediaries. These guidelines open a Pandora’s box of potential issues, including infringement upon basic fundamental rights such as the right to privacy and the freedom of speech, and have the potential to stifle innovation and healthy competition. This puts us in danger of veering from safe harbour to perilously rocky shores.

The guidelines propose a mandate for intermediaries to moderate their content and hold them liable for information transmitted or shared on their platforms. Frankly, this is an exercise in futility. By 2020, an estimated 1.7Mb of data will be generated every second for every person on earth (Domo research). It is impossible for intermediaries to analyse and control their data in real time. It is, therefore, unfair for them to be held liable for the same.

If a man uses a map app to guide him to a particular location to commit a murder, he must be brought to justice. However, the app he used cannot be held liable. If the app company is petitioned by court order for data relevant to the case, they will be required to comply with the judicial system. This ensures that justice is served while protecting constitutional rights.

Intermediaries are also mandated to remove content within 24 hours of receiving a notice by court order or a government body. Firstly, it is particularly worrisome that any government agency has the authority to independently request intermediaries to remove material they deem objectionable. This is prime breeding ground for misuse of power without the right judiciary oversight.

This issue has been vigorously debated and settled in our Supreme Court. The Shreya Singhal vs Union of India case of 2015 saw two women arrested, without a court order, for social media content that angered a few political bigwigs. The arrest was made under the now-repealed Section 66A of the IT Act of 2000, which allowed any person that posted alleged ‘offensive’ content on websites to be arrested without prior legal due process. The Supreme Court rightly deemed this unconstitutional and an infringement upon the rights of Indian citizens. The social media platform was also not held liable for not taking down the alleged ‘offensive’ content immediately.

Requiring intermediaries to pro-actively moderate content will also create the issue of intermediaries themselves impinging on the right to freedom of expression. They may be forced to conduct arbitrary and unlawful censorship of opinions they feel are controversial, just to err on the safe side of the rules. Moreover, 24 hours is too little a time for intermediaries to evaluate and respond to requests. Such a short deadline gives no opportunity to seek clarifications or additional information on takedowns. This can have a very chilling effect on free speech and expression. After all, the cornerstone of a democracy is the ability to voice an opinion in public and freely debate it with those who differ—without the fear of being shut down, face unlawful arrest or government intervention.

Intermediaries are also told to use automated tools to track and trace the origins of such a content, and made to share this information. This will adversely affect encrypted messaging services and, thereby, the right to privacy. The landmark Puttaswamy case of 2017 addressed this issue. A 91-year-old retired High Court judge opposed the proposal for a mandatory biometrics-based ID card to be issued prior to allowing individuals access to government services. The Supreme Court deemed this unconstitutional and firmly stated that the right to privacy was a fundamental right.

The draft amendment also decrees that intermediaries need to remove content that could threaten public safety, health or critical information infrastructure. Suppose a few people object to a viral marketing campaign for cupcakes on the basis that it is ‘glorification of diabetes’. They are free to generate opposing content and promote it on social media. If they strongly feel the campaign is detrimental to public health, they can take the matter to court. If they win, the court can petition the social media platform to remove the harmful messaging. This is the right way to uphold the checks and balances in place for our democracy to thrive.

Another onerous requirement in the draft amendment is that any intermediary with a user base of 50 lakh or above would need to comply with incorporating an entity, maintain a permanent office, and appoint a point of contact to liaise with law enforcement in India. In this world of digital agility, this is taking huge steps backwards in promoting India as an attractive market for investors and a healthy market for competitive business. In a nation of crores, it is not that difficult for a company to amass 50 lakh users, so this rule affects several of our homegrown enterprises and global partners. Furthermore, this will serve as deterrent to companies entering India or even offering their services here. Who will be the ultimate losers? We, the Indian citizens and businesses.

On the flip side, how can our government keep us safe from nefarious activities? Criminals do avail themselves of common intermediary platforms to incite violence against targeted groups, spread false information, and plan attacks. These cases need to go through the proper legal channels to gain access to private records, or to petition intermediaries to moderate offensive material. Additionally, there are already existing laws to fight cybercrime and other issues online in an effective manner. These include Section 505 of the IPC, and Sections 290 and 153A of the IPC (CIS). Legal reforms to streamline the judicial process of reviewing petitions for content takedown are also recommended to permit timely action.

We can take a page out of esteemed global entities. The United Nations’ Rapporteur’s Report on the Promotion and Protection of the Right to Freedom of Opinion and Expression states that only independent and impartial judicial authorities should be arbitrators of lawful expression—not governmental agencies. The Manila Principles are a global set of guidelines that offer best practices for nations when it comes to regulating intermediaries that include not restricting content unless by a clear, unambiguous order from a competent judicial body.

As India continues to ascend greater heights to establish its place among world leaders, we need to be extremely savvy with how we regulate this generation’s most valuable asset—free-flowing data and information. If we want to continue to promote homegrown businesses and global investments, we must create the environment to receive them—and the intermediaries that facilitate data flow.

Shouldn’t we be relying more on a reformed and effective justice system to act as independent arbitrators of legal issues to protect the fundamental rights of all the citizens?

The author is president, Broadband India Forum, and honorary fellow of the IET (London). Views are personal.

(Research inputs by Chandana Bala.)

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