Comments on the (Draft) Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018

Abstract

This paper contains our comments on the (Draft) Information Technology (Intermediaries Guidelines (Amendment) Rules, 2018 (Draft Rules) issued for public comments by the Ministry of Electronics and Information Technology, Government of India. We begin by briefly setting out the context of Section 79 of the Information Technology Act, 2000 (IT Act), which contains the safe harbour provision for intermediaries in India. The Draft Rules seek to replace the present set of rules framed under this provision. Our overarching comments on the Draft Rules deal with (i) the scope of subordinate legislation — how the numerous substantive obligations in the Draft Rules exceed the mandate of the parent provision; (ii) need for a calibrated approach for different types of intermediaries, based on the nature of activities being carried out by them and the risks and challenges arising from those activities; and (iii) need for a separate conversation on the merits and demerits of voluntary take down mechanisms adopted by various platforms, which essentially amounts to private forms of censorship. These observations are followed by provision-wise comments on the specific text of the Draft Rules.