The Information Technology [Intermediaries

Guidelines (Amendment) Rules] 2018

Jyoti Singh
BA.LLB (3rd year)
Department of Law, Calcutta University
Intermediaries

Person/entity who stores or transmits

a message or provides service with
respect to any message on behalf of
another person.

Section 79 of It Act, 2000 deals with

exemption from liability of
intermediary in certain cases.

Image: sflc.in
Development of the IT Intermediaries Guidelines,
2011

Controversial Baazee.com case- Avnish Bajaj, the CEO of Baazee.com, an auction

portal, was arrested for an obscene MMS clip that was put up for sale on the
site by a user.

Demand of the software industry and industrial bodies to have protection from
liability that could arise because of user generated content.
Overview of the IT Intermediaries Guidelines, 2011

● Purpose: To bring clarity to the

circumstances in which the
intermediaries can escape
liability.
● Provides for due diligence to be
observed
● Provisions regarding censorship
of private data, reasonable
measures to be taken by
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intermediary, etc
Development of Draft Intermediaries Guidelines, 2018
● Tehseen S Poonawalla case- With
regard to several instances of
lynching and mob violence,
interim orders were issued by
the Court directing the Center to
take steps to curb the
dissemination of content on
social media that could incite
violence.
● Prajwala Letter Case- Court
directed that guidelines,
standard operating procedures
as well as technology for auto-
deletion of content be put in
place to deal with videos,
imagery, sites and other similar
contents in relation to child
pornography, rape and gang
rape.
 Draft Intermediary Guidelines, 2018
● Released by the Meity on
December 24, 2018.
● These rules seek to address ‘Misuse
of Social Media Platform and
spreading of fake news’
● Proposed in order to strengthen
the legal framework and make
social media platforms accountable
● Seek to bring in stricter compliance
from intermediaries
● Government proposes to make it
mandatory for online platforms to
“proactively” ferret content seen as
unlawful
● These rules also seek to break end-
to-end encryption.
Major amendments proposed

● These platforms are to appoint a

● Social media platforms required to
nodal officer in India for round-the-
end the full encryption procedure
clock coordination with law
● Intermediary which has more than
enforcement agencies.
50 lakh users in India shall be
● Social media platforms will need to
required to have a permanent
comply with the Central
office in India with physical address.
Government “within 72 hours” of a
query.
Major amendments proposed

● Intermediaries are required to

● Intermediaries to remove or
keep records of unlawful
disable access to unlawful acts
activities for 180 days
upon receiving actual knowledge
● Also required to inform its users
in the form of court order or
at least once in every month that
upon being notified by the
it has the right to terminate
government or its agency.
access or usage rights of the
users in case of non compliance.
Implications

● Proposed amendments bound to

force social media platforms to
remain vigil and keep users on
their toes before posting or
sharing anything that is deemed
“unlawful information or
content”.
● Changes aim to curb fake news
Image: legaleraonline.com
or rumours being spread on
social media and check mob
violence ahead.
Criticism

● Affects the Right to privacy of individuals

● Requirement for all intermediaries to ensure traceability of the originator
of content has caused outrage.
● Concerns that these proposed rules are an attempt by the government to
curb freedom of expression over the Internet.
● The change in rules to Section 79 of the Act cannot run contrary to the
Supreme Court judgment.
Observation
● Increases due diligence to be
observed by intermediary
● Increases the responsibility of
the intermediaries.
● Onus is still primarily on the
government and not fully moved
to platform.
● If something is automated, users
ignore it. Thus, ineffective
suggestion.
● Decryption of encrypted data
weakens overall security and
contradicts the principles of data
minimization
● Rules should be objective and
clearly spelt out and not left to
the authorities to interpret them
in their own ways
Thank You