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All Posts | Apr 12,2019

Blue Paper – Conference on Future of Tech Policy in India

We organised a Conference on 'Future of Tech Policy in India' on 15 March 2019 in Delhi. Over 150 people participated in the conference. Our report on Intermediary Liability 2.0 - A shifting Paradigm was launched during this conference.

 

A Blue Paper containing inputs received during this conference is available below. This document does not reflect the views of SFLC.in.

 

Brief agenda:

  • 09:30 AM to 10:00 AM: Registration

  • 10:00 AM to 11:30 AM: Session 1 - Misinformation and Intermediary Liability

  • 11:30 AM to 11:40 AM: Overview of the Report on ‘Intermediary Liability 2.0: A Shifting Paradigm’

  • 11:40 AM to 11:50 AM: Tea Break

  • 11:50 AM to 01:15 PM: Session 2 - The Role of Social Media in Elections

  • 01:15 PM to 02:00 PM: Lunch

  • 02:00 PM to 03:20 PM: Session 3 - Online Harassment

  • 03:20 PM to 03:30 PM: Tea Break

  • 03:30 PM to 03:50 PM: Lightning Talk on FreedomBox

  • 03:50 PM to 05:00 PM: Session 4 - The Future of Tech Policy

All Posts | Feb 28,2019

Summary Report: ‘Defending Free Speech and Privacy on the Internet’ A Round Table Discussion on the Future of Intermediary Liability in India

SFLC.in organized a round table discussion on the Future of Intermediary Liability in India titled 'Defending Free Speech and Privacy on the Internet'. The round table took place on 13th February, 2019 at India International Centre, New Delhi. Attendees included members of civil society, industry organizations, academia, representatives from tech companies, intermediaries, industry and media. The round table included two sessions and following is a report on major discussions that took place.

Session 1: Discussing key recommendations made by various stakeholders

The discussions during the first session of the round table focused on:

  1. Classification of intermediaries:

  2. Rule 3(4) of the proposed Information Technology (Intermediaries Guidelines) Rules, 2011 (“Draft Rules”) which requires intermediaries to inform users about privacy policy at least once every month;

  3. Rule 3(9) of the Draft Rules which directs intermediaries to deploy automated filters for proactively filtering unlawful information or content;

  4. Rule 3(5) of the Draft Rules which mandates enabling tracing out of information; and

  5. Incorporation of intermediaries under Rule 3(7) of the Draft Rules.

Participants reasoned that Draft Rules should be framed according to the role of intermediaries and their control over the content. The present situation is that the proposed Draft Rules apply to all intermediaries, from online platform to cyber cafes. This one size fits all approach is problematic. There is a need to identify the categories that Draft Rules would apply to and tailor the conditions for each category.

The requirement to inform users at least once every month is counterproductive as it will cause consent fatigue. As an alternative, the requirement should be that platforms upload the changes in their privacy policies so that the users are kept meaningfully abreast of the relevant updates in policies and do not get lost in a barrage of messages.

On the use of automated content filtering, the participants agreed that this requirement will not only effectuate pre-censorship but will also have a chilling effect on free speech. When read with Draft Rule 3(2)(b) which contains a broad category of terms such as “blasphemous”, “grossly harmful” and “harassing” that are vague1, deployment of technologies to proactively monitor and weed out such content will violate the right to freedom of speech and expression. This also implies that the intermediary will be applying its judgement to take decisions about removing content posted by third parties. This abrogates the basic conditions of safe harbour for intermediaries under Section 79 of the Information Technology Act, 2000 (“IT Act”).

Taking the discussions further, the participants discussed the issue of traceability. Traceability depends on the kind of information the intermediary collects and has nothing to do with encryption. There are challenges in fulfilling this requirement as the intermediaries will be required to maintain impossibly vast database of information and this affects the principle of data minimisation, an essential component for implementation of right to privacy. Moreover, creating backdoors or deliberate vulnerabilities in end to end encryption threatens security of users, exposing them to hackers. To facilitate tracing, applications like ShareChat and Tiktok include a watermark with the handle of the user which doesn't reveal the identity of the user but ties the messages to it.

Further, mandatory requirement for incorporation under the Companies Act, 2013 of India cannot be introduced by a subordinate legislation under the IT Act. This is excessive delegation and goes beyond the scope of the proposed Draft Rules. The condition will impose onerous burden on start-ups and dis-incentivize them from growing. Alternative options such as opening representative office and designating an officer for constant coordination with law enforcement agencies can be explored.

Session 2: Safe Harbour Is Essential, But How Can We Ensure Accountability

Second session of the round table focused on balancing safe harbor protection for intermediaries while making then accountable for unlawful content. The discussion broke out with an admission that intermediaries themselves want the unlawful content such as hate speech, misinformation, child pornography, copyright infringement being taken down at the earliest but free speech should not be made a casualty in the process.

The Draft Rules could be seen as excessive delegation under the IT Act and a form of state censorship. Section 69A of the IT Act already allows issuing directions for ‘blocking for public access of any information through any computer resource’. Section 79 of the IT Act on the other hand relates to safe harbour protection only. It is an exception clause and imposing elaborate content take down requirements under it is outside its purview. This view was supported by Supreme Court in Shreya Singhal v. Union of India [WP (Crim) 167 of 2012] and Delhi High Court in Myspace Inc. V. Super Cassettes Industries Ltd. [FAO(OS) 540/2011] where the courts found that Section 79 was an exception and shouldn’t be used as a substantive provision for content take down. Also Section 69A has procedural safeguards which must be followed before issuing content take down notices. However, Section 79 being exception clause lacks adequate safeguards and the Draft Rules dilutes necessary checks needed for content take down. So, it was suggested that Section 69A should be invoked for the purpose instead of Section 79.

Concerns were raised on stringent response time to take down notices imposed under the Draft Rules. In some cases the government notice is in a vernacular language and translating these or getting a legal opinion on validity of order takes time.

Attendees realized that the government has bona-fide concerns that there has been a rise in misinformation, terrorist propaganda and other forms of unlawful content on digital space. Intermediaries should be made responsible but rules and regulation should be proportionate. Suggested solutions include IAMAI’s self-regulatory model, intermediaries making contract with users not to upload such content (T&C) and updating community guidelines. The knowledge gap should be filled by regular interaction between a consortium of technology companies and government. Also, more transparency is needed from the tech-companies.

On the fake news issue, it was suggested that fake news should be clearly defined and applied equally across intermediaries. A common list benchmark on fake news could be created. Social media entities could work with fact checking organizations to collate a list. Predictability of user behavior by the social media platforms has been criticized as biased.

There is a social and literacy gap that needs to be filled. Low literacy rates and large population is a challenge while dealing with fake news. A holistic approach including capacity development, educating the users on ‘netiquettes’ and generating awareness should be used. Efforts being taken in some Kerala schools to train students to identify fake news could be replicated at regional and national levels. Correcting fake news with right information was suggested. Police could counter fake news by using the same social medial platforms. Police in Kolkata runs a Facebook page to generate awareness. Similarly, police in Maharashtra is using technology to take down copyright infringing content.

On incorporation requirement in the Draft Rules, an issue was raised that tech-companies do not cooperate with law enforcement agencies. It was suggested that standard operating procedures should be established and process gaps need to be addressed.

Use of fake news in election campaigns was also discussed. Government being a major stakeholder in the election process has a larger role to play. It should work with the Election Commission of India (“EC”) in taking out advertisements against fake news. Simple steps like asking for fact checking could bring a huge change. The recent deliberations at EC on Section 126 of Representation of People Act, 1951 could have been broader and more transparent.

Certain clarifications in IT Act were suggested. It is unclear what consequences would ensue on violation of safe harbor protection. Whether intermediaries would be exposed the entire list of offences under the IT Act and other laws like IPC. Some attendees were of the view that intermediaries should not be given a blanket safe harbor protection especially for content or fake news that leads to ethnic cleansing or lynchings. The recent expose by New York Times that Facebook knew about the unprecedented Russian advertisement spending was discussed. It was reiterated that platforms must be made responsible and transparent.

In summary, suggestions included building transparency and accountability in industry and tech-companies; training and capacity building in digital literacy and security; government should be involved in the process; addressing challenges in implementation by building a centralized complaint mechanism on fake news and online harassment, and building a stronger encryption policy. Policy intents and recitals are good options that could be incorporate to better understand the draft rules.

1In the Shreya Singhal v. Union of India (WP (Crim) 167 of 2012) the Supreme Court declared that Section 66A suffered from the vice of vagueness and had struck it down. Terms used in Section 66A such as “grossly harmful” and “harassing” are still used in the Draft Rules.

 

All Posts | Feb 01,2019

Blue Paper: Misinformation and Draft Intermediary Guidelines

In the wake of increased spread of misinformation on social media, the Ministry of Electronics and Information Technology (MeitY) has issued The Draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018.

SFLC.in conducted a series of discussions on misinformation and the proposed Draft Intermediary Guidelines across India in January 2019 including New Delhi (Jan 11 & 18), Bengaluru (Jan 15), Mumbai (Jan 16) and Kochi (Jan 30).

This Blue Paper contains the comments, remarks and inputs made during the above-mentioned discussions by the participants. The document does not reflect the views of SFLC.in.

All Posts | Jan 28,2019

Countering Misinformation: Policies and Solutions, Kochi

SFLC.in is organizing “Countering Misinformation: Policies and Solutions” a round table discussion to understand the phenomenon of misinformation and disinformation, and discuss solutions to tackle the issue.

In recent times, the impact of misinformation and disinformation campaigns in terms of inciting violence, mob lynchings and manipulating elections have reached unprecedented levels. The Internet has undoubtedly facilitated the spread of fake news due to its wide reach and the ease it provides to spread information easily.

This brings us to some important questions that we need to answer in order to engender a discourse to fight fake news. We will seek to answer these questions and brainstorm ideas to inform the policy debate around this issue.

We have published FAQs on Draft Amendment of Intermediary Guidelines Rules in India - https://sflc.in/faq-draft-amendment-intermediary-guidelines-rules-india

Date: January 30, 2019 (Wednesday)

Venue: Hotel Coral Isle,St. Benedict Road, Opp. North Railway Station, Kochi, Kerala

Time: 4.45 pm - 8.00 pm

Please find more details in the agenda below.

All Posts | Jan 21,2019

Press Release – Experts: Media and Digital Literacy Must to Fight Fake News

New Delhi, 22nd January 2019: Ahead of the 2019 general elections in India, it is important to realize the consequences of misinformation and disinformation campaigns, also popularly called fake news, on our democracy. Further, we must actively develop policies and solutions to counter the same, stakeholders and experts unanimously agreed at a discussion organized by Delhi-based legal services organization SFLC.in in Delhi.

The two panel discussions under the topic “Countering Misinformation: Policies and Solutions” featured important stakeholders representing media, social media platforms, law enforcement, civil society and political and legal organizations.

Speaking at the first discussion, Mr. Abhinandan Sekhri, Founder and CEO of Newslaundry.com noted that media organizations must relook at their business models in order to safeguard themselves against fake news. “As far as news is going to be driven by eyeballs and advertising money, there is an incentive (to publish fake news), and facts don't matter,” he said.

Ms. Malavika Balasubramanian, Head of Webqoof (Fact checking initiative of The Quint) elaborated the importance of fact checking by media organizations before publishing any news or video. “A journalist's desire to push through a breaking news could harm somebody, so it's always better to fact check first,” she said.

One of the primary reasons for the proliferation of fake news is the lack of digital literacy. Technology journalist Prasanto K Roy said that fake news spreads with extreme velocity and the reason has to be demographics, 96-97% of internet users are mobile only, they just see a video and forward it without reading the caption that comes along.

Ms. Rupa Jha, Head of Indian Languages at BBC World Service India remarked that the government should encourage and support free and independent journalism, instead of maligning it. “It is high time that media takes responsibility (for fake news). I have immense trust in the Indian electorate, but it is not going to be easy to win back the trust of people,” Ms. Jha said. The study on fake news conducted by BBC found that people do not verify videos shared by family, friends and relatives, as they consider them as trusted sources. She also added that as long as the political dispensation continues to benefit from fake news, the problem will remain.

The second panel discussed possible solutions for countering fake news. Ms. Shehla Rashid, citizen activist called out fake news as ‘propaganda’. “People believe in fake news because of their inherent confirmation bias. Fake news is enmeshed in propaganda, and even if you know that a news is fake, it will still inject some bias especially when it is against a public figure,” she said.

Mr. Ghanshyam Tiwari, spokesperson for Samajwadi Party said, “the government has given a long leash to the multinational corporations that spread fake news.” He also expressed his disappointment with the debate around fake news in the Parliament. Speaking of a solution, he said, “a citizen-led movements are needed to educate the masses against the dangers of fake news. We cannot expect the government or private businesses to create the necessary safeguards.”

Delhi Police Assistant Commissioner Siddhartha Jain, in charge of investigating cybercrime, said that ground level policing is important to combat the social impact of fake news. He also informed that a number of RWA groups in Delhi now have a local constable in their WhatsApp group, and if the constable notices anything being shared on the group that may incite violence or unrest, he promptly informs the SHO of that area.

The panelists unanimously opined that media and digital literacy is the best way forward towards countering fake news. Mr. Berges Malu, Head of Public Policy and Government Affairs at Sharechat, Indian’s leading vernacular social sharing app said, “we strongly believe that educating people is more important than busting fake news.” Ms. Karnika Kohli, Audience editor for Scroll.in agreed, “I do not believe any regulation from government or technology platforms (is needed). Digital and media literacy is the way forward. It is necessary to cultivate the culture of scepticism and question everything. ”

 

 

About SFLC.in

SFLC.in (Software Freedom Law Centre, India) is a Delhi based volunteer-run not for profit organization comprised of lawyers, policy analysts, technologists, and students that strive to protect and promote digital rights and digital freedom. Over the past few years, SFLC.in has been working on issues related to privacy, free speech, data protection, and net-neutrality (among other things), so as to inform the public discourse on these subjects.

 

 

All Posts | Jan 14,2019

Countering Misinformation: Policies and Solutions, Mumbai

SFLC.in is organizing “Countering Misinformation: Policies and Solutions” a roundtable discussion to understand the phenomenon of misinformation and disinformation, and discuss solutions to tackle the issue.

In recent times, the impact of misinformation and disinformation campaigns in terms of inciting violence, mob lynchings and manipulating elections have reached unprecedented levels. The Internet has undoubtedly facilitated the spread of fake news due to its wide reach and the ease it provides to spread information easily.

This brings us to some important questions that we need to answer in order to engender a discourse to fight fake news. We will seek to answer these questions and brainstorm ideas to inform the policy debate around this issue.

Date: January 16, 2019 (Wednesday)

Venue: Office of MouthShut.com - 7, Pali Village, Bandra (West), Mumbai

Time: 1.00 pm -5.30 pm

Please find more details in the agenda below.

All Posts | Jan 14,2019

Countering Misinformation: Policies and Solutions, Bangalore

SFLC.in is organizing “Countering Misinformation: Policies and Solutions” a round table discussion to understand the phenomenon of misinformation and disinformation, and discuss solutions to tackle the issue.

In recent times, the impact of misinformation and disinformation campaigns in terms of inciting violence, mob lynchings and manipulating elections have reached unprecedented levels. The Internet has undoubtedly facilitated the spread of fake news due to its wide reach and the ease it provides to spread information easily.

This brings us to some important questions that we need to answer in order to engender a discourse to fight fake news. We will seek to answer these questions and brainstorm ideas to inform the policy debate around this issue.

Date: January 15, 2019 (Tuesday)

Venue: Hotel Royal Orchid, Golf Avenue, Airport Road, Bangalore

Time: 1.00 pm -5.30 pm

Please find more details in the agenda below.

All Posts | Jan 14,2019

Countering Misinformation: Policies and Solutions, New Delhi

SFLC.in is organizing “Countering Misinformation: Policies and Solutions” a panel discussion to understand the phenomenon of misinformation and disinformation, and discuss solutions to tackle the issue.

In recent times, the impact of misinformation and disinformation campaigns in terms of inciting violence, mob lynchings and manipulating elections have reached unprecedented levels. The Internet has undoubtedly facilitated the spread of fake news due to its wide reach and the ease it provides to spread information easily.

This brings us to some important questions that we need to answer in order to engender a discourse to fight fake news. We will seek to answer these questions and brainstorm ideas to inform the policy debate around this issue.

Date: January 18, 2019 (Friday)

Venue: India International Centre, New Delhi (Lecture Hall No.1)

Time: 12.30 pm -5.30 pm

Please find more details in the agenda below.