EFF says new Indian rules on online content threaten the free and open internet

The new IT rules 2021 that look over OTT platforms, social media, and online news companies were brought into effect last month. The Electronic Frontier Foundation (EFF), which is a US-based non-profit digital rights group has termed the changes for the new IT rules for online intermediaries as “draconian.” The report noted that the 2021 rules were fast-tracked without public or pre-legislative consultation. It further noted that the rules create new possibilities for government surveillance of citizens and restrict companies to moderate platforms at their discretion. “These rules threaten the idea of a free and open internet built on a bedrock of international human rights standards,” EFF in the report said.

The EFF has highlighted the IT rules 2021’s requirements for decryption of messaging apps, to find the originator of a message under serious crimes. If the originator is found outside of India, then to find him or her within the country. The report notes the key problem with the identification of the first originator of the information proposal, despite court limitations, is, “A technical mandate for companies to re-engineer or re-design messaging services to comply with the government’s demand to identify the originator of a message.”

The report explained that messaging apps with over 5 million registered Indian users would fall under significant social media intermediaries. It defines social media intermediaries as “entities which primarily or solely enable online interaction between two or more users and allow them to create, upload, share, disseminate, modify or access information using its services.” Examples of social media intermediaries are Facebook, Twitter, and YouTube. The definition also includes search engines and cloud service providers, which are not social media in a strict sense.

The report cited the recent case of a Manipuri journalist Paojel Chaoba — publisher of Khanasi Neinasi, an online discussion, which Chaoba had reportedly held on Facebook. The notice was sent to the publisher/ intermediary from the State Government and he was directed to “furnish relevant documents” showing that he ensured compliance with the new provisions.

This was reportedly the first time the notice was issued under the new guidelines. The notice was immediately withdrawn following the letter by the top I&B official to the Manipur Chief Secretary. I&B officials insisted that it was a case of an official “overstepping”.

The report noted that like the 2021 intermediary rules, the 2011 rules have categories of speech that intermediaries must notify their users not to “host, display, upload, modify, publish, transmit, store, update or share.” It also stated that some of these categories are vague and that could lead to censorship. “These include content that violates Indian law, but also many vague categories that could lead to censorship of legitimate user speech. By complying with government-imposed restrictions, companies cannot live up to their responsibility to respect international human rights, in particular freedom of expression, in their daily business conduct,” EFF noted.

The report further highlighted the deadlines for content removal under the new norms. According to the new norms, intermediaries are required to remove or disable, within 24 hours of receiving a complaint, non-consensual sexually explicit material in electronic form, including artificially morphed images of such individuals. It also gives them 72 hours to provide information within their control or possession, or ‘assistance,’ to the government.

It emphasised that the deadlines are not sufficient for intermediaries to assess complaints or government orders and that they will be compelled to use automated filter systems to identify and remove content. “These error-prone systems can filter out legitimate speech and are a threat to users’ rights to free speech and expression,” it noted. It added that failure in complying with these rules could lead to up to 7 years of imprisonment for the intermediaries.

It also noted that the process of content removal is transparent, and requires intermediaries to inform users about it and explain why it was taken down which is an upside. However, it states that the presence of a chief compliance officer and a grievance officer who will be held liable if the content is not removed within the timeframe will lead to hindrances for intermediaries as they “may find it difficult to challenge or resist arbitrary and disproportionate government orders.” It also suggests that there should be a resident employee who serves as a contact person for coordination with law enforcement agencies.

The significant social media intermediaries will be required to use “automated tools or other mechanisms, to proactively identify certain types of content. EFF noted that this could lead to more takedowns as IT rules 2021 already encourage over-removal of content. India Today