NASSCOM urges government not to generalise 'intermediaries', seeks further clarifications

IT lobby group NASSCOM and Data Security Council of India (not-for-profit body on data protection set-up by NASSCOM) have urged the government not to generalise the 'intermediaries' under the proposed changes to the Information Technology Rules. Ministry of Electronics and Information Technology (MeitY) initiated a consultation process in the last week of December on the proposed changes to the existing Intermediaries Guidelines Rules, 2011 and also eliminate Section 79 of the IT Act 2000, which provides safe-harbour to intermediaries from third party liabilities.

NASSCOM in its statement said, "It is critical that the intermediaries are not generalised as a single category and are differentiated according to their nature, functions, and activities they deliver since not all of them enable users to share content with others or make it available to the public." It has further raised concerns around B2B intermediaries, who would not come under the purview of fake news, but under the proposed rule changes. They may have to bear the burden of making their content available to the public.

NASSCOM further added that it has requested the government for procedural safeguards and asked clarifications on which of the government agencies / authority would be competent to seek a takedown request of any content. Under the Rule 3 of the draft, the onus placed on intermediaries for due diligence also says, "The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission, which NASSCOM says is vague and places the intermediaries in the role of an arbitrator.

The proposed changes to the IT rules have received mixed responses as several key dignitaries from research, academia, and media earlier wrote a joint letter to MeitY regarding concerns over privacy, decryption and possibility of disproportionate use of government regulation in the internet space. However, Indian IT services players seem to welcome the rules with respect to data localisation and domestic incorporation of entities in India, which is also a part of the proposed changes to the rules. According to Wipro's inputs to the ministry on the proposed rules, it sided with the government on the issue of data localisation, stating that it is "crucial" for sensitive information and data to be stored domestically, which in turn would facilitate easy access and quick response in a breach scenario.

The government had earlier given a 10-day window for submission of counter arguments to the published comments, which ends on February 14, 2019.

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