Global tech companies, civil society groups and academics have raised concerns over the Indian government’s draft rules to regulate internet content and even doubted the constitutional validity of some proposed norms.
The Ministry of Electronics and Information Technology had in December issued the draft of the so-called ‘intermediary guidelines’ that would require social media companies such as Facebook to remove unlawful content within 24 hours. The norms also proposed a 72-hour timeframe for internet service providers, e-commerce platforms, search engines, social networks and other tech companies to assist the government in response to a lawful order.
The ministry had said at the time that the rules were aimed at checking the misuse of social media platforms and spread of fake news. It had sought public comments on the proposed norms by February 4.
The ministry has yet to upload the comments on its website. But some of the responses accessed by TechCircle indicate that tech lobby groups and nonprofits have asked the government to relook the 24-hour and the 72-hour timelines. These groups have also challenged the constitutional validity of some provisions, including Rule 3(8) of the draft guidelines which requires tech companies to remove or disable access to unlawful acts as required by a court order or a government agency.
The Asia Internet Coalition said the 72-hour timeline was “unfeasible”, especially for startups and small companies, and “procedurally impossible to comply with” for foreign requests for data governed by mutual legal assistance treaties.
The coalition represents tech companies such as Airbnb, Amazon, Apple, Expedia Group, Facebook, Google, LinkedIn, LINE, Rakuten, Twitter and Booking.com. The group also suggested the inclusion of ‘Stop the Clock’ provisions by listing out a set of criteria and sought clarifications under which the time limit would cease to apply for a fair resolution to government orders.
In a joint submission by open source browser Mozilla, open code repository GitHub and crowd-sourced encyclopedia platform WikiMedia Foundation, the organisations requested the ministry to begin the process of public consultations afresh and said they do not support the current draft.
The Global Network Initiative expressed concern over the suggested use of technology-based automated tools for proactively identifying and removing unlawful content. The GNI is an alliance of civil society organizations, academics, investors and communication and tech companies such as Vodafone, Telenor Group, Microsoft, Nokia, Facebook and Google.
“GNI does not believe that governments should mandate the use of filters or other automated content evaluation tools in laws regulating speech. If companies decide to use automation to facilitate content moderation, they should do so in a transparent, accountable manner, while maintaining an appropriate degree of human review,” it said.
The Centre for Communication Governance at the National Law University, Delhi, said in its submission that the rules must define ‘traceability’ and that the government must specify its requirements when it asks tech companies to trace the originator of objectionable content.
Kaushal Mahan, lead of technology practice at research and advocacy group Chase India, said the comments reflect that the draft amendments would have the effect of “negating safe harbor” for tech companies and expose them to excessive regulation. “The restrictive provisions and onerous liabilities are likely to prove discouraging for the growth of digital services in India.”
“The government could consider coming out with a handbook that clearly establishes the extent of the regulation addressing the concerns raised by stakeholders,” he added.
The draft rules also call for the appointment of a nodal officer in India by any internet company which has more than 50 lakh users. The officer must be available for coordination with law enforcement agencies at all times. Multiple submissions also pointed at the burden the provision places on smaller internet companies.
However, Rajeev Chandrasekhar, a member of parliament and founder of investment firm Jupiter Capital, said internet companies must not be allowed to enjoy ‘safe harbour’ exemption and that there is a need for a different set of regulations for different types of companies such as internet service providers, e-commerce platforms, search engines and social networks.