How safe is your harbour? Discussions on intermediary liability and user rights

Background

The Manila Principles outline three kinds of liability regimes that countries follow while regulating intermediaries; expansive protections against liability, conditional immunity and primary liability. Post Avneesh Bajaj, India has been following the second model, where intermediaries are provided safe harbour for the acts of their users. In December 2018, the Ministry of Electronics and Information Technology (MeitY), released a draft of the Information Technology (Intermediary Guidelines (Amendment) Rules), 2018. These rules raised a host of concerns in the way they envision liability and user rights in the digital domain. The proposed amendments may mark a departure from the current model by creating cumbersome obligations for intermediaries to avail safe harbour.

At the Centre for Internet and Society (CIS), we have been closely examining some of the draft rules to decipher the changed regime. Our research has focussed on the impact of mandating automated content filtering, shortened turnaround times for intermediaries to take content down, and the traceability of originators of information.

As part of our ongoing work, we are hosting this event to contribute to the discussion around the nuances of the rules and the future of intermediary liability in India. As such, this event will begin with a brief analysis of the proposed amendments. We will also address the restrictions these would place on freedom of expression online and the way intermediaries do their business, among others. Subsequently, we would be having sessions on particular aspects of the rules. Finally, we would dedicate the last session on contemplating the future of intermediary liability regime in India. 

Panels

Automated content filtering

One of the more controversial and stringent rules introduced in the proposed amendments is Rule 3(9) which necessitates the use of automated technology in filtering content. The draft rule does not specify the scope of the content to be detected, the technologies to be used, or any procedural safeguards that accompany the deployment of the technology. The discussion on the rule will, thus, centre around the legal validity of the proposal, the effect on different scales of intermediaries, and the consequences of intermediaries’ compliance on the exercise of freedom of expression in India.

Panelists: Kanksshi Agarwal (Senior Researcher, Centre for Policy Research); Nayantara Ranganathan (Independent researcher); Shashank Mohan (Counsel, Software Freedom Law Centre); Moderator: Akriti Bopanna (Policy Officer, CIS)

Content takedown

In this session, we will examine S.69 and S.79 of the IT Act that permit the Government to mandate intermediaries to remove/block content. Our discussion will focus on the procedural flaws of the law, issues of due process, and the lack of transparency in the legal process of content takedown. Additionally, we will discuss  findings from our research on the feasibility of a specific turnaround time, and regulatory factors that need to be considered before fixing an appropriate takedown timeframe.

Panelists: Bhavna Jha (Research Associate, IT for Change); Divij Joshi (Technology Policy Fellow, Mozilla); Moderator: Torsha Sarkar (Policy Officer, CIS)

Traceability

The draft Intermediary Guidelines propose requiring intermediaries to enable traceability of originators of information. While this move is ostensibly to crack down on misinformation and fake news, there are questions regarding its feasibility and effects on platform architecture. More importantly, it poses grave dangers for the freedom of expression and privacy of users. The discussion will be centred around how traceability interacts with the Constitution and other laws in India, the litigation around it, possible methods to implement traceability (by or without breaking encryption) and what it means for the larger debate on intermediary liability and free speech.

Panelists: Aditi Agrawal (Senior Research Associate, MediaNama); Anand Venkatanarayanan (Cybersecurity researcher); G S Madhusudan (Principal Scientist, IIT Madras); Moderator: Tanaya Rajwade (Policy Officer, CIS)

RSVP

To register for the event, please RSVP here.

Note that this is a research event. Please ignore social media messages that have erroneously identified this event as a protest.