IAMAI recommends enabling progressive intermediary liability regime in IT Rules 2021
The IT Rules, 2021, though intended to create a robust regime for tackling modern-day challenges such as proliferation of disinformation, child sexual abuse material, and seditious and terrorism-related content, have raised questions around the legal and technical legitimacy and the viability of many of the provisions that they entail.
According to a report by Internet and Mobile Association of India (IAMAI), along with The Dialogue (public-policy think-tank), industry stakeholders surveyed expressed concerns over the infeasibility of originator traceability mandated in the Rules, the many ramifications on imposing personal liability on chief compliance officers, and the impact due diligence requirements will have on entry barriers and the ease of doing business.
The report, ‘IT Rules, 2021: A Regulatory Impact Assessment Study – Assessing the Impact of IT Rules on Businesses’, said a majority of intermediaries and cybersecurity experts surveyed held that it was technically impossible to introduce traceability on end-to-end encrypted platforms without breaking the encryption technology itself.
The study also recommended enabling a progressive intermediary liability regime, instilling procedural safeguards for assisting law enforcement agencies, and furthering a uniform and transparent content blocking regime.
“More than 85 per cent of intermediaries, surveyed during a recent study feel that compliance mandates envisaged in Part II of the Information Technology (Intermediary Guidelines & Digital Media Ethics Code) Rules, 2021, introduced by the Ministry of Electronics and Information Technology (MeitY) in February last year, would lead to overwhelming economic repercussions and negatively impact their ease-of-doing-business,” it said.
This is one of the key findings of the report, it said, adding that 70 stakeholders were interviewed in the study pertaining to Part II of the IT Rules, 2021.
Some of the other important findings of the report said that a majority of the intermediaries noted that in a country like India with a population of 1.3 billion, setting a threshold of five-million users to be designated as a significant social media intermediary, is quite onerous from an economic standpoint. Also, while the government published the FAQs last year, which was a step in the right direction, a detailed Standard Operating Procedure (SOP) must be published by the government explaining the criteria for calculation of the threshold and guiding the executive’s power to mandate any intermediary to comply with the additional due diligence mandates.
“Majority of the intermediaries dealing with large amounts of user generated content noted that there is a need for grading the takedown orders according to the degree of harm to enable sufficient time for assessing the genuineness of the requests,” it added.
Amar Patnaik, Member of Parliament; Aruna Sharma, Former Secretary, Ministry of Electronics & IT; and Megha Bhatia, Founder, Our Voix (a child safety NGO), took part in a panel discussion held on the occasion.
July 04, 2022