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Legal ‘hole’ in online draft

Mozilla voices concern over India's plan to change the rules for social media and other platforms
The “proposals turn online companies into censors and undermine encryption”, Mozilla said in a statement.
The “proposals turn online companies into censors and undermine encryption”, Mozilla said in a statement.

Our Special Correspondent   |   New Delhi   |   Published 03.01.19, 10:28 PM

Mozilla, the not-for-profit entity behind the web browser Firefox, has called out the Narendra Modi government’s perceived attempt to stifle free speech over the Internet.

The Centre has proposed to introduce rules that will require social media and e-commerce platforms to proactively take down “unlawful” user content that the government or its agencies determine to be offensive.

In the landmark Shreyas Singhal judgment handed down by the Supreme Court in 2015, Internet companies were only expected to remove content when they were directed by a court to do so.

On December 24, the ministry of electronics and information technology put up the proposal to amend the Information Technology (Intermediaries Guidelines Rules) 2018 and invited comments.

Amba Kak, Mozilla’s public policy adviser, said in a recent blog post that the ministry’s attempt to foist the new set of rules on the intermediaries turned the logic of the Singhal judgment “on its head”.

At the heart of the issue is the government’s attempt to twist the interpretation of Section 79 of the Information Technology Act, which provides Internet intermediaries an exemption from liabilities.

In their order delivered in March 2015, Justices J. Chelameswar and Rohinton Fali Nariman had struck down Section 66A of the IT Act which contained provisions for the arrest of those who posted offensive content on the Internet.

The order declared that Section 66A was not only vague and arbitrary but also “disproportionately invaded the right of free speech” enshrined under Article 19 (1)(A) of the Constitution.

The Modi government is now trying to amend the rules to make sure that every social media platform to “remove or disable access” to unlawful when it receives actual knowledge about such an offensive post either in the form of a court order or “on being notified by the appropriate government or its agency” (emphasis added).

Kak described the government’s plan to change the rules for social media and other platforms as a “blunt and disproportionate” fix to the problem of harmful online content.

Mozilla, which is a passionate advocate of data protection and privacy rights, believes that “the proactive obligation on services to remove “unlawful” content will inevitably lead to over-censorship and “chill free expression”.

The technology firm asserted that any regulatory intervention to this complex issue must be preceded by a wide-ranging and participatory discussion process.

But the government has said that the closing date for the submission of comments on the draft rules will be January 15 and these will be posted on the ministry’s website three days later.

A 10-day period till January 28 will be given for counter-comments, which suggests that the government is in a hurry to put the new rules in place well before the announcement of the general election later this year.

The new rules will require social media platforms and messaging apps to deploy tools to identify and curb unlawful content.

“The intermediary shall preserve such information and associated records for at least 180 days for investigation purposes, or for such longer period as may be required by the court or by government agencies who are lawfully authorized,” the draft rules say.

The “proposals turn online companies into censors and undermine encryption”, Mozilla said in a statement on Thursday.

“Requiring services to decrypt encrypted data weakens overall security and contradicts the principles of data minimization, endorsed in (the ministry’s) draft data protection bill,” Mozilla said.

Terming the new rules as “maladroit policy proposals”, Kak said in her blog that the government was looking to justify the move based on instances of misuse of social media by “criminals and anti-national elements”, citing lynching incidents spurred by misinformation campaigns.

“We recognize that harmful content online -– from hate speech and misinformation to terrorist content – undermines the overall health of the internet and stifles its empowering potential. However, the regulation of speech online necessarily calls into play numerous fundamental rights and freedoms guaranteed by the Indian Constitution (freedom of speech, right to privacy, due process etc.) as well as crucial technical considerations (‘does the architecture of the internet render this type of measure possible or not’),” Kak wrote in her blog.

Other privacy advocates are coming out in strong support of Mozilla’s stand.

Karnika Seth, a lawyer specialising on IT Act, said: “Even if the government wants to place reasonable restrictions, rules have to be objective and clearly spelled out. It should not be left to the authorities to interpret them in their own ways. There is a need to revisit the Section 69 of the IT Act in the light of the Supreme Court judgment on right to privacy.”

Section 69 of the IT Act confers powers on the government to “issue directions for interception or monitoring or decryption of any information through any computer resource”.

Section 79 of the Act provides immunity to the service provider or ISP for any offence or contravention committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Pavan Duggal, cyber law expert, said: “The government needs to revisit Section 69 and Section 79 of the Information Technology Act in the light of the Supreme Court judgment on right to privacy. These sections puts curbs on individual privacy and the government cannot have unreasonable powers to curb individual liberty. The proposed change in rules to Section 79 of the Act cannot run contrary to the Supreme Court judgment.

“The proposed rules could curb individual freedom as the government could seek information from the social media firms and not sharing such information would be an offence. The rules the proposed rules are a retrograde step as it has not provided any effective remedy to victims of cybercrime offences in India. ”

The genesis of the new rules is in a calling attention motion that was admitted in the Rajya Sabha in last year’s monsoon session which drew attention to the misuse of social media platforms and spreading of fake news.

At that time, Ravi Shankar Prasad, the minister for electronics and IT, had underscored the government’s resolve to “strengthen the legal framework and make social media platforms accountable under the law”.

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