The Shreya Singhal judgment of the Supreme Court of India in 2015 was a seminal case with respect to intermediary liability law in the country. The court ordered that online content from social media platforms such as Facebook and Twitter can only be removed through a court order or upon government's request. The decision was taken in a bid to protect citizen's right to free speech. While the right to free speech is constitutional, the threats from fake news and misinformation are also real, as seen in the Cambridge Analytica case.
The panel discussion "Shrinking Safe Harbour, Dwindling Freedom?" by Delhi-based legal not-for-profit organisation SFLC addressed the use of mandatory upload filters and requirement of traceability of originator of message, which were major changes that the government made in the existing Intermediary Liability Rules.
Automated filtering technology is used by platforms like Google and Facebook to detect and remove hate speech and other forms of violent and extremist content. Ministry of Electronics and Information Technology (MeitY) in its Draft Intermediaries Guidelines has recommended making the use of automated tools by intermediary platforms mandatory. However, it seems to have also affected otherwise harmless content and it can pose a threat to free speech on the internet.
The Draft Intermediaries Guidelines also mandate that the intermediary will enable the tracing of the originator of the message on its platform when required by the legally authorised government agencies.
"Government said that in order to curb fake news, automated filters should come in. We are also expecting a two-tier regime to solve the traceability issue. The new laws should not erode the promise of free and open Internet which makes it inclusive and global" said Sundar Krishnan, Executive Director, SFLC.in.
Addressing the issue Chandrashekhar, Group Director, Government Affairs and Public Policy at Microsoft India said, "Genesis of this issue is the inability of policy to keep pace with technology. In the past few years, the concept of intermediaries has changed and we need to take a fresh look now. In order to protect privacy, we need a process with judicial insight."
Shehla Rashid, online activist and former vice-president of JNU said, "I take a pro-regulation approach. Intermediaries are primary economic beneficiaries of the platforms, they need to take greater responsibility for free speech. Hate speech kills free speech and we want them to track down hate speech. Every intermediary should come up with a transparency report."
Faiza Rahman, Research Fellow, National Institute of Public Finance and Policy (NIPFP) said, "The IT rules impose obligations to identify the origin of the message. Can traceability be ensured without doing away with encryption? To my mind, if encryption is altogether done away with, it compromises all our communications. If traceability requires them to build back- doors, I don't know if that validates the proportionality principle."
Shivam Vij, Editor, The Print, said, "In 2011, people like me had free speech but today, I doubt anyone will say that we don't need regulation. Even though we support free speech, we need regulation. It should evolve as technology evolves. They talk about fake news, traceability and clamping down social media companies but no one talks about free speech."
"It is extremely important that interoperability and that competition to be looked at in order to make sure that the web can remain a safe and open place," said Udbhav Tiwari, Public Policy Advisor for Mozilla.
The panel discussion was a part of the report launch 'The Future of Intermediary Liability' as the Government of India (through the MeitY) is poised to notify the Draft Intermediaries Guidelines by the end of January.