New rules for social media companies and other hosts of third-party content have just gone into effect in India. The proposed changes to India’s 2018 Intermediary Guidelines are now live, allowing the government to insert itself into content moderation efforts and make demands of tech companies some simply won’t be able to comply with.
Now, under the threat of fines and jail time, platforms like Twitter (itself a recent combatant of the Indian government over its attempts to silence people protesting yet another bad law) can be held directly responsible for any “illegal” content it hosts, even as the government attempts to pay lip service to honoring long-standing intermediary protections that immunized them from the actions of their users.
turns a whole lot of online discourse into potentially illegal content.
The new mandates demand platforms operating in India proactively scan all uploaded content to ensure it complies with India’s laws.
The Intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.
This obligation is not only impossible to comply with (and is prohibitively expensive for smaller platforms and sites/online forums that don’t have access to AI tools), it opens up platforms to prosecution simply for being unable to do the impossible. And complying with this directive to implement this demand undercuts the Safe Harbour protections granted to intermediaries by the Indian government.
If you’re moderating all content prior to it going “live,” it’s no longer possible to claim you’re not acting as an editor or curator. The Indian government grants Safe Harbour to “passive” conduits of information. The new law pretty much abolishes those because complying with the law turns intermediaries from “passive” to “active.”
Broader and broader it gets, with the Indian government rewriting its “national security only” demands to cover “investigation or detection or prosecution or prevention of offence(s).” In other words, the Indian government can force platforms and services to provide information and assistance within 72 hours of notification to almost any government agency for almost any reason.
This assistance includes “tracing the origin” of illegal content — something that may be impossible to comply with since some platforms don’t collect enough personal information to make identification possible. Any information dug up by intermediaries in support of government action must be retained for 180 days whether or not the government makes use of it.
More burdens: any intermediary with more than 5 million users must establish permanent residence in India and provide on-call service 24/7. Takedown compliance has been accelerated from 36 hours of notification to 24 hours.
Very few companies will be able to comply with most of these directives. No company will be able to comply with them completely. And with the government insisting on adding more “eye of the beholder” content to the illegal list, the law encourages pre-censorship of any questionable content and invites regulators and other government agencies to get into the moderation business.