Event Report: How Safe is Your Harbour? Discussions on Intermediary Liability and User Rights

Introduction

On 10 January 2020, the Centre for Internet and Society (CIS) hosted panel discussions on intermediary liability in India. The event consisted of four panel discussions with the overarching focus being on intermediary liability in India, discussed primarily with reference to the Draft Intermediary Guidelines Rules that were released by the Ministry of Electronics and Information Technology for public consultation in December 2018 (the “Draft Rules”). 

The first panel focussed on one of the more controversial and stringent rules introduced in the proposed amendments, Rule 3(9), which necessitates the use of automated technology by intermediaries for filtering ‘unlawful’ 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 key discussion points included the rationale behind the introduction of this mandate, the technical infeasibility of implementation, its effect on freedom of speech online, and possible mitigations. 

The second panel was themed around content takedown and its legal aspects specifically under S.69 and S.79 of the IT Act, which permit the Government to mandate intermediaries to remove/block content. The panel discussed the ramifications of the flawed legal system that regulates content takedown, the failure of the intermediary liability regime to sufficiently accommodate issues relating to content removal, and ways of improving and introducing nuances in the legal framework.

The third panel looked at the proposal 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 dangers for the freedom of expression and privacy of users. These questions were juxtaposed against the ongoing litigation in the WhatsApp case. The discussion was also themed around the proposal made by IIT Madras which attempted to ensure traceability without breaking encryption, and the possible constitutional concerns emanating from the implementation of this rule.

The final panel brought together the threads from the previous discussions, and debated the ways in which the draft intermediary guidelines represent a departure from the current model of intermediary liability in India, and its potential effects on similar regulation in other countries.

The full version of the report can be accessed here. The report has been edited by Gurshabad Grover and Torsha Sarkar.