Changes in draft on intermediary liability likely

On Saturday, an IT ministry official, who spoke on condition of anonymity, said the culpability of intermediaries could be one of the rethinks in the draft rules after the ministry held wide consultations.

With barely days left for the January 15 deadline for the union ministry of electronic and information technology (MeitY) to notify the Intermediary Guidelines (Amendment) Rules 2018, tweaks in the draft could lead to changes in intermediary culpability and a redefinition of unlawful content to include terrorism and child sexual abuse imagery.

The government had told the Supreme Court the draft rules were ready and needed to be discussed and vetted. (AP)

An official of the IT ministry said that the culpability of intermediaries could be one of the rethinks in the draft Rules after the ministry held wide consultations. “Whether the intermediary has to take suo moto action, or it takes it after a directive from the government is one of the points being discussed,” said the official.

Section 3(9) of the Rules states that any intermediary under the ambit of the Rules should “deploy technology based automated tools or appropriate mechanisms” to identify and remove “unlawful” content. Under the Rules, those intermediaries with more than 50 lakh users in India come under the ambit of the law and so, are necessitated to have a permanent registered office in India, and a nodal officer here.

Unlawful content, too, could be redefined to include terrorism and child sexual abuse imagery, said the official.

As per the IT ministry’s affidavit to the Supreme Court in the Facebook transfer petition in October last year, the notification is likely to be completed by January 15. The apex court had directed the ministry in September to submit a specific timeline to notify the guidelines.

Several intermediaries, who have been part of the discussions, have expressed their reservations due to the Indian government’s insistence on traceability. WhatsApp, which has an estimated 400 million users in India, has said that the changes could interfere with users’ privacy.

“The proposed changes are going overboard and are not consistent with strong privacy protections that people around the world are seeking. If the government goes ahead with the regulations, it will require us to re-architect our product,” Carl Woog, WhatsApp’s Head of Communications had said in February last year while in India.

Last week, many open source platforms like Mozilla, Cloudfare and GitHub urged the government to share the draft Rules with the public before they are notified.