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GitHub, Mozilla and Cloudflare appeal to India to be transparent about changes in its intermediary liability rules

Manish Singh
Pedestrians use smartphones at the Nehru Place IT Market in New Delhi, India on Tuesday, May 30, 2017. Reliance Communications Ltd.'s credit rating was cut deeper into junk territory by Moody's Investors Service, which cited its weak operating performance, high leverage and fragile liquidity position. Reliance Communications' troubles come amid intensifying competition among mobile phone carriers in India, fueled by the entry of Reliance Jio, launched by India's richest man Mukesh Ambani. Photographer: Sanjit Das/Bloomberg via Getty Images
Pedestrians use smartphones at the Nehru Place IT Market in New Delhi, India on Tuesday, May 30, 2017. Reliance Communications Ltd.'s credit rating was cut deeper into junk territory by Moody's Investors Service, which cited its weak operating performance, high leverage and fragile liquidity position. Reliance Communications' troubles come amid intensifying competition among mobile phone carriers in India, fueled by the entry of Reliance Jio, launched by India's richest man Mukesh Ambani. Photographer: Sanjit Das/Bloomberg via Getty Images

Microsoft’s GitHub, Mozilla and Cloudflare have urged India to be transparent about the amendments it is making to an upcoming law that could affect swathes of companies and the way more than half a billion people access information online.

In December 2018, the Indian government proposed changes to its intermediary rules (PDF) that would require any service that facilitates communication between two or more users and had more than 5 million users in India to set up a local office and have a senior executive in the nation who could be held responsible for any legal issues.

The proposal also suggested that any of these services must be able to take down questionable content within 24 hours and share the user data within 72 hours of request.

Technology giants such as Facebook and Google have so far enjoyed what is known as “safe harbor” laws. The laws, currently applicable in the U.S. under the Communications Decency Act and India through its 2000 Information Technology Act, say that tech platforms won’t be held liable for the things their users share on the platform.

Several organizations have shared feedback and expressed concern about the suggested changes in India's intermediary rules. In an open letter addressed to India’s IT Minister Ravi Shankar Prasad on Tuesday, GitHub, Mozilla and Cloudflare requested the Indian government to be more transparent about the final amendments it has drafted for the upcoming law.

The Indian government has said previously that it would submit the final draft of the proposal to the nation’s apex Supreme Court by January 15. But one of the concerning issues with the proposal is that nobody -- except for the government officials -- knows what is in the final draft.

“We understand and respect the need to ensure the internet is a safe space where large platforms take appropriate responsibility. However, the last version of these amendments which were available in the public domain suggest that the rules will promote automated censorship, tilt the playing field in favour of large players, substantially increase surveillance, and prompt a fragmentation of the internet in India that would harm users while failing to empower Indians,” the organizations wrote (PDF).

The organizations argued that safe harbor liability protections have been fundamental to the growth of the internet in India -- which has emerged as the last great growth market for internet companies globally. Imposing the obligations proposed in these new rules would “place a tremendous, and in many cases fatal, burden on many online intermediaries -- especially new organizations and companies. A new community or a startup would be significantly challenged by the need to build expensive filtering infrastructure and hire an army of lawyers,” they said.

Critics say that last publicly known version of the draft also had an extremely broad definition of the term "intermediary," which would likely lead to many unintended parties being impacted. Additionally, they have argued that proactively monitoring user content on the platform and bringing “traceability” for “all unlawful content” would lead to overcensorship. The short timelines of 24 hours for content take-downs and 72 hours for the sharing of user data pose significant implementation and freedom of expression challenges, the organizations said today.

"Given your government's commitment to the Supreme Court of India to notify these rules by January 15, 2020, it is vital that the public has the opportunity to see a final version of these amendments to help ensure that they assuage the concerns which have been voiced by a wide variety of stakeholders during the public consultation. We appeal for this increased transparency and we remain committed to working with you to achieve the broader objective of these amendments while allowing Indians to benefit from a global internet," they added.