Naavi.org

This is in continuation of our discussions on the Intermediary Guidelines which are proposed to be amended by the MeitY. The Government wants to urgently address the “Fake News” phenomenon which has exploded into a real mess with leaders like Rahul Gandhi taking it to ridiculous lengths and earlier respected media like Hindu falling into the gutter of lies with such political parties.

In this context we reiterate our strategy to address the concerns expressed by many companies and activists  while providing their comments by a completely different approach which no body other than one Commentator (FDPPI… Page 21-28 of the first batch of comments) has made.

The suggestion is to introduce a system of voluntary adoption of an “Intermediary Dispute Resolution Policy” (IDRP)  administered by “Intermediary Dispute Management Centers” (IDMC) which are accredited by the Ministry.

The big idea in this suggestion draws from the “Uniform Domain Name Dispute Resolution Policy” (UDRP) and the INDRP which resolves domain name disputes. It also goes along with the need to be compliant with the Data Protection Laws (PDPA 2018) which has introduced the concept of “Data Fiduciaries”, when it becomes applicable. It also takes into account the system of “Digi Lockers” which the Government has already introduced.

It uses the system similar to declaration of a company through “Prospectus” as used in IPO scenario and “Certification Practice Statement” as used in Digital Signature regulation.

When an organization commits itself to a declared policy and the consequences thereof, they also subject themselves to the requirements of avoiding “Breach of Trust” charge .

Additionally the “Due Diligence” becomes the self accepted level and if it fails to meet them, they should also accept the liabilities that may come upon them under Section 79.

Further, since the administration of the policy and its adjudication on a complaint will be through an expert non government organization and there is no need for political opponents of Mr Modi to muddy the discussion.

Before people start evaluating any suggestion, I request them to fully appreciate what Section 79 really means and what these guidelines actually indicate.

Section 79 says that if there is any contravention of ITA 2000/8 and such contravention has been done through a message which has passed through an intermediary, then the intermediary who follows the due diligence will not be held liable.  If the concerned intermediary fails to meet the definition as defined in ITA 2000/8 or is found to have abetted in the contravention or has failed in the due diligence as determined by a Court, it will be held liable along with the person/s who actually committed the contravention and caused damage to a complainant.

Section 79 is not itself a penal section which states that there will be some punishment if it is not followed. Similarly the guidelines which we are discussing does not prescribe  mandatory punishments to say that if these guidelines are not followed, the intermediary will be punished with imprisonment, fine or liability to compensate.

For these guidelines to hurt, some complainant should have a cause of action under ITA 2000/8 or other law and hold out the information handled by an “Intermediary” as the cause for his hurt. Then it is the responsibility of the Courts to consider that the Intermediary had some responsibility which he has overlooked and then hold them liable along with the original perpetrator of the crime.

Hence most of the objections that have been raised in the comments in the 608+84 page document are  untenable.

I request the interested persons to kindly peruse the suggestions and provide their feedback.

Naavi

[Discussion continued from previous articles]

“Status Quo” is most comfortable for some of the tech companies as regards Intermediary guidelines is what comes out of the 609 page collection of public comments.

There are a total of 141  comments which are listed in the list given below.

Index of Suggestions received as Public Comments

(Please note that the .Page numbers are from a down loaded document. One the website there will be a difference of page numbers by one page since numbering starts from the second page. Also, since in some cases the identity of the persons was not visible, they have been left blank  If any body can claim the particular comment, they can keep Naavi informed so that this index can be updated.)

Who all have provided comments

It may be noted that there are a number of foreign companies, NGOs and even individuals who have provided their comments.

As could be expected, several NGOs who are active in promoting human rights on the Internet have provided their views.

Since Naavi’s views were already contained in FDPPI’s views, no separate submission was made by either Naavi individually or from Cyber Law College or Naavi.org.

What is surprising is that most of the Premier Law Colleges including the NLSUI, NALSAR etc have not contributed their thoughts. IIIT Bangalore is however one of the academic institutions that has submitted its views.

FINTECH industry as well as the E Commerce, industry  are conspicuous by its absence in the list of contributors.

There is some thoughts contributed from the health care sector particularly regarding the part referring to smoking, alcohol and Narcotics promotion on Internet.

Bombay Chamber of Commerce and Industry,  FICCI, AMCHAM and CII are industry associations which have contributed their thoughts. US India Business Council has also provided its views.

Election Commission of India  is the Government body which has submitted its views.

Number of law firms which have submitted their views are few. Banana IP, IRA Law, Samvad partners are a few who can be identified. There are a few individual lawyers who have submitted their views. Most of the persons who promote themselves as “Cyber Lawyers” have not taken the trouble of providing their considered views. The habitual PIL lawyers who raise the Constitutional rights at the drop of a hat have also failed to record their views at this stage.

Rajeev Chandrashekar as an MP has submitted his views while comments have also been made from the Congress Party in the name of “All India Professional Congress”.

IBM, Wipro, JIo, XIAOMI, AWS, Mozilla, are the noticeable names from the tech industry.

ISPs and MSPs are represented through their associations. Few Policy research organizations have provided their views.

NASSCOM’s views are provided through DSCI.

Overall, it is heartening to note that so many people have taken the interest in submitting their views, though several more should have also contributed.  At least this indicates the wide interest being shown on Indian law making process across the world.

Negative Comments predominant

It is unfortunate to note that majority of comments are “Negative” comments and include those which keep saying, more consultation is required etc. These indicate that people are happy with policy paralysis and no action being taken rather than some action.

Many of the suggestions made also indicate lack of understanding of the context in which this notification has to be placed as an administrative notification under the statute which became effective in 2009 itself.

Shreya Singhal Judgement which was a faulty judgement with a wrong interpretation of “Messaging” as “Publication” and Puttaswamy Judgement which was related to “Information Privacy” without defining what is “Privacy” have been extensively quoted by many.

Further Comments to Follow

It is easy to say “Don’t Do this or that”. But it is difficult to say “What should be done”.  We therefore  need to ignore most of the negative comments and focus on a few which contain some suggestions. It is only from those comments that the Government would be able to bring some changes that would try to tackle the issue of “Fake News” and “Frauds through Intermediaries”.

We shall try to focus on such positive comments in our subsequent articles though it may be necessary to comment on a few others in the passing.

Naavi

A draft of a modified  Intermediary guidelines under Section 79 of ITA 2000/8 was released  on 24th December 2018, modifying the earlier guideline of 11th April 2011. Public comments were called for on the draft until 31st January 2019. Now the consolidation of comments running to 609 pages has been released by Meity. Counter comments can be sent on these comments until 14th February 2019 after which Government may proceed to finalize the draft.

The copy of the consolidated report is available here.

Naavi’s views has been provided under the banner of FDPPI which is available at pages 21-28.

It is heartening to note so many responses being filed and with a detailed analysis. The response seems to vindicate my earlier view that what we are seeing is the second awakening in the industry about the presence of a law called Information Technology Act 2000 and its implications on the functioning of the industry. The law came into being on 17th October 2000 but most people in the industry ignored. It was only in 2011 when Section 43A rules were published, that the industry woke up to the existence of the law.

Now the Management localization and the automated tools suggested in the rules have been noticed by the industry and there is some effort to record their views.

Several advocates have placed their views invoking “Constitutional Issues” repeatedly and quoting the Puttaswamy judgement.

We will try to highlight some of the salient suggestions that have been made in the comments in due course.

To start with we draw the attention of the industry professionals to the specific suggestions made in the FDPPI comments particularly the idea of developing an “Intermediary Dispute Resolution Policy” and implementing it through accredited dispute resolution agencies on the lines of the ICANN control on domain names.

The advantages of such a system will be discussed in subsequent articles.

Naavi

I was glad to see a report that a person  was sentenced to 10 year imprisonment for SIM Swapping fraud. It was unfortunate that he was a young 20 year old college student. The fraud involved crypto currencies which I classify as “Currency of the Criminals”.

The incident was however not in India but in California as this report indicates. According to the report he is the first hacker sentenced for SIM swapping fraud.

These kind of frauds happen regularly in India and our laws are not so stringent to impose any deterrent punishments to these criminals. 

I am happy that such stringent punishments are meted out to such criminals. This should not be misunderstood that I am harsh on a young boy who is being punished but actually, I am sympathetic and compassionate to the many of the victims whom this person affected out of his greed.

Indian Courts need to take note of this Criminal Jurisprudence and ensure that in India when such cases are found, the culprits donot get immediate bail and are punished properly.

Naavi