In December 2018, the Ministry of Electronics and Information Technology released the Intermediary Liability Guidelines (Amendment) Rules, which would significantly alter the intermediary liability regime in India. The Rules for criticised by all corners, including tech-giants, civil society, research organisations.
Some of the major problems with the Bills are:
- Active monitoring of content leading to pre-screening: Intermediaries are required to deploy-technology based automated tools or appropriate mechanisms with appropriate controls to proactively identify and remove access to unlawful content. Proactive monitoring requirement would mean that intermediaries would have knowledge and oversight over information that is transmitted on their platform and would thus no longer be amenable to Safe Harbour protection.
- Local presence requirement: Intermediaries with 5,000,000 users are required to be incorporated in India with a permanent, registered, physical address in India and a nodal person who shall be available 24X7 to provide assistance to State agencies. This proposal is problematic because it will increase operational costs and may have adverse tax implications who will now be deemed to have a permanent establishment in Indi.
- Takedown requirement: As compared to the 36-hour takedown requirement previously, Rule 3(8) of the proposed rules mandate intermediaries, prompted by a court order or a government notification, to take down content relating to unlawful acts within 24 hours of such notification. In the failure to do so, the safe harbour applicable to them under section 79 of the Information Technology Act would cease to apply.
- Tracing requirement: The intermediaries, upon receiving a request by the authorised agency, will be required to trace the originator of any information. This is problematic since intermediaries may not collect enough data points from their users to meet this requirement.
For detailed analysis, refer to Ikigai Law.