Impending Changes to India’s Internet Intermediary Rules Raise Concern for Indian Technology Innovation, Free Speech and Global Competitiveness

Impending Changes to India’s Internet Intermediary Rules Raise Concern for Indian Technology Innovation, Free Speech and Global Competitiveness

India is at the cusp of amending its intermediary liability regime that will expand the due diligence measures required to avail safe harbor to include proactive monitoring, mandatory local incorporation, enabling the traceability of originators (which would impact encryption), and very short timelines for content takedown and user data sharing.

This will not only place a significant burden on businesses providing Internet services but also passes the legal burdens of deciding what content should stay online onto private companies, that must extrajudicially interpret the law. This would neither be fair for providers (many of whom have no visibility into the content) nor those using online services. 

India’s government had aimed to enact new intermediary liability rules by January 15th, largely in reaction to a spate of mob violence due to rumors spread on WhatsApp which led to multiple deaths. 

Given the feedback from industry and civil society, the IT Ministry seems to be taking some time to revise the rules to lessen their impact on many online intermediaries. The rules are expected to be announced and enacted in the coming weeks, which might be as soon as the next two weeks.

The changes anticipated from the previously disclosed rules according to public reports include: 

• The creation of two tiers of intermediaries: social media intermediaries that will face stricter rules and everyone else will likely have relatively light new regulatory requirements.
• Mandatory local legal incorporation for social media intermediaries over a certain number of users, likely at over 5 million users.
• Proactive monitoring, potentially limited to child sexual abuse materials (CSAM) and extremist/terrorist content.  

i2Coalition respectfully urges policymakers to consider the impact of these regulations on privacy, free expression, and innovation in India. Leaving the policing of the Internet to intermediaries rather than authorities risks silencing voices and forcing criminal networks further underground. Only large companies are able to abide by costly filtering procedures (through a combination of humans or sophisticated AI algorithms), which in turn makes it impossible for smaller companies to compete. And taking measures to disable encryption adds fundamental weaknesses to communication infrastructure.

We are hopeful that the extra time being taken will allow Indian lawmakers to thoughtfully approach the situation they seek to address.  We encourage legislators to take this time to clearly understand the role of web hosting and Internet infrastructure providers within the Internet ecosystem. Intermediary protections are vital at this level of the Internet’s ecosystem, and at the very least it should be made clear that these types of web hosting and infrastructure services are made exempt from most of the proposed changes, many of which will be technically impossible for them to implement due to the technical design of the Internet.  

We recognize that Internet policy is a complicated issue. We urge policymakers to reach out to organizations like ours, and the companies we represent, in order to fully understand the ramifications of these expected changes to India’s Internet intermediary rules. We look forward to working with Indian policymakers to help move the needle on the legitimate interests behind these proposals while allowing for free speech and innovation in the Indian market.