Google, Facebook absent at meeting; working group to redraft objectionable language

The refusal by either companies or MPs to shed their reservations about the proposed changes in the Information Technology (Intermediary Guidelines) Rules, 2011, which are part of the IT Act, 2000, has led to Telecom Minister Kapil Sibal agreeing to engage in larger consultation. Accompanied by Minister of State Sachin Pilot, DIT Secretary J. Satyanarayana and Gulshan Rai, a senior functionary in the DIT, at a roundtable meeting here on Thursday, Mr. Sibal said it was not the government’s intention to regulate free speech or content. “We will set up a smaller group represented by all the stakeholders, civil society, lawyers, academics, cybercafés, MPs, and then tweak these rules in such a way that they are acceptable to everybody. Everybody must work together since the rules are required and due diligence must be done. There must be clarity with respect to due diligence, and the contours of liability must be clarified.”

The meeting, called at a day’s notice, was attended by a handful of MPs, representatives of industry and industry associations and lawyers. Civil society and the technical community were conspicuous by their absence. According to Sunil Abraham of the Centre for Internet and Society, civil society organisations were not invited and attempts to elicit an invitation from the DIT were spurned.

In a presentation on the process of formulating the IT Rules, including their consistence with Indian law, guidelines of mega Internet companies, and approach papers submitted by industry associations, the government used Google and Twitter’s transparency data to showcase the point that India stood out globally as the country which had made the least requests for removal of content.

The audience disagreed with the government’s claim that the Lok Sabha Committee on Subordinate Legislation had already scrutinised the rules, pointing out that it was meeting only on August 13, to discuss the issue.

Change in language

Stakeholders were unwilling to yield ground on their demands for a change in the language that is currently included in various Sections of the Rules. Of the 25 MPs whose names appeared on the list of invitees, only two made it to the meeting. Rajeev Chandrasekhar, an independent MP from Bangalore, said the IT Rules are an overreach on the law, lend themselves to misuse and cast an enormous liability on intermediaries. The issue needs to be discussed in greater detail by experts.

Trinamool Congress MP Derek O’Brian said freedom of the Internet must be protected at all costs especially since most content is user-generated. He agreed on the need for a mechanism to decide on the removal of harmful content but sought the involvement of State governments in making such decisions.

The Federation of Indian Industry and Commerce said it had consulted nearly 50 of its members whose consensus represented the need to remove some wrinkles from Section 3, especially 3(2) Section 79, and asked that a smaller working group of experts be set up to make those changes. Then the document should be put up for a wider consultation, especially with civil society.

NASSCOM, apex body for BPO and IT industries, wanted a clarification on the 36-hour clause. They also expressed concern about the interpretation, which may lead companies such as BPO and cloud computing to be treated as ‘intermediaries’, as well as reconstitution of the Cyber Regulations Advisory Committee or an appropriate redress body.

There was wide-ranging opposition to Section 3(2), especially with regard to the broad interpretation of the words ‘blasphemous’, ‘defamatory’, ‘ethnically objectionable’, and ‘disparaging’. Mr. Sibal showed a Yahoo ‘terms of service’ document wherein similar terms were used by the company.

‘Light touch regulation’

Defending itself, Yahoo said it expected a ‘light-touch regulation’ instead of the current rules. It raised several objections to Section 3. Yahoo was opposed to the fact that the onus of deciding what content should be kept or taken down was placed on intermediaries. It also pointed to the cost element involved. It was clarified that Yahoo was already in court, where it has appealed the constitutionality of Section 3(7).

Though Google and Facebook are known to have major concerns with the Rules, their representatives did not attend the discussion.

The CII raised questions about safe harbour and the issue of liability on the intermediary when it is forced to remove one private party’s content at the request of a second private party.

Due diligence burdensome

The Cyber Café Association said it was too small an entity to engage in detailed due diligence of the kind necessitated under the Rules. It would therefore be necessary to incorporate its views while redrafting the rules.

ISPs made a strong point about the confusion created by multiple orders from different courts being sent directly to service providers, and whether this entire piece could be better organised by way of procedure.