New Delhi: The Narendra Modi government is planning to amend the guidelines around online content, and make it mandatory for platforms to weed out content seen as “unlawful”. If brought about, these changes may have serious implications for freedom of speech online.
The proposed draft of The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 seeks to amend provisions under Section 79 of the information technology Act. Online platforms – referred to as “intermediaries” – must “deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying or removing or disabling access to unlawful information or content”, the draft rules say.
Rule 3(5) of the draft amendments says, “When required by a lawful order, the intermediary shall, within 72 hours of communication, provide such information or assistance as asked for by any government agency or assistance concerning security of the State or cyber security; or investigation or detection or prosecution or prevention of offence(s); protective or cyber security and matters connected with or incidental thereto. …The intermediary shall enable tracing out of such originator of information on its platform as may be required by government agencies who are legally authorised.” This ensures that platforms will have to break end-to-end encryption and save information on all data, including WhatsApp messages.
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According to the Indian Express, these draft rules were discussed by officials from the Ministry of Electronics and Information Technology and cyber law division, and representatives from Google, Facebook, WhatsApp, Amazon, Yahoo, Twitter, ShareChat, SEBI and The Internet Service Providers Association of India on Friday. These discussions have not been made public.
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Online platforms will have to keep a record of any “unlawful activity” for a period of 180 days, Rule 3(8) says. In the older version of the rules, this period is 90 days.
The intermediary upon receiving actual knowledge in the form of a court order, or on being notified by the appropriate Government or its agency under section 79(3)(b) of Act shall remove or disable access to that unlawful acts relatable to Article 19(2) of the Constitution of India such as in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, on its computer resource without vitiating the evidence in any manner, as far as possible immediately, but in no case later than twenty-four hours in accordance with sub-rule (6) of Rule 3. Further the intermediary shall preserve such information and associated records for at least one hundred and eighty days for investigation purposes, or for such longer period as may be required by the court or by government agencies who are lawfully authorised.
Union minister Ravi Shankar Prasad had talked about the government’s intention it amend the IT Act rules. It is the “responsibility, accountability and larger commitment [of online platforms] to ensure that its platform is not misused on a large scale to spread incorrect facts projected as news and designed to instigate people to commit crime”, he told Rajya Sabha.
“The draft rules have been shared with us, and we will issue a detailed analysis. But on the face of it, they seem to be contemplating pro-active censorship and breaking encryption with traceability. They will make the Internet a corporal environment damaging the fundamental rights of users,” Apar Gupta, lawyer and co-founder of The Internet Freedom Foundation, told the Indian Express. “All these proposals are being discussed secretly without any public consultation. I worry that the recent government measures are taking us very close to a Chinese model of censorship.”