India's New Cyber Law Goes Live: Subtracts Safe Harbor Protections, Adds Compelled Assistance Demands For Intermediaries

from the out-with-the-good,-in-with-the-bad dept

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.

Here's a really bland and misleading summary of the new requirements from the Economic Times, India's most popular business newspaper:

The guidelines propose additional responsibilities on social media companies. These include verifying users through mobile numbers, tracing origin of messages required by a court order and building automated tools to identify child pornography and terror-related content. All these requirements come under the ambit of under due diligence.

This sounds like pretty reasonable stuff. But it isn't because it goes much farther than what's summarized here and turns a whole lot of online discourse into potentially illegal content.

(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonates another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;
(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
(j) threatens public health or safety; promotion of cigarettes or any other tobacco products or consumption of intoxicant including alcohol and Electronic Nicotine Delivery System (ENDS) & like products that enable nicotine delivery except for the purpose & in the manner and to the extent, as may be approved under the Drugs and Cosmetics Act, 1940 and Rules made thereunder;
(k) threatens critical information infrastructure.

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.

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Filed Under: censorship, content moderation, filters, free speech, general monitoring, india, intermediary liability, social media


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  • identicon
    Anonymous Coward, 26 Feb 2021 @ 12:12pm

    That last one is fun

    (k) threatens critical information infrastructure.

    Doesn't this new law due exactly that?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 Feb 2021 @ 12:35pm

    Well that's one way to drive companies out of the country

    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.

    I have no doubt that the entire purpose of that little tidbit is so that the government has someone to threaten to throw in a cell as leverage, along with cutting off the argument of 'we aren't based in your country we merely serve the people in it, so take your demands and shove em up your backside'.

    Meanwhile I'm sure more than a few US politicians are looking at this train-wreck and taking notes, because this seems to be almost exactly what some of them have been pushing for between 'lawful access' and 'no anonymity allowed'.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 26 Feb 2021 @ 6:14pm

      Re: Well that's one way to drive companies out of the country

      I’m not entirely sure how that would be enforced, anyways. If they don’t have a residence in India, India would lack the ability to actually do anything to that company.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 27 Feb 2021 @ 4:35am

        Re: Re: Well that's one way to drive companies out of the countr

        Apart from block their service in India. Then it becomes a case of If you want Indian users, you comply with our laws.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 12:58pm

    (h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

    So no more kitten videos, because they use bandwidth?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 1:17pm

    platforms like Twitter can be held directly responsible for any "illegal" content it hosts

    Given that there is no such thing as perfect moderation and no matter how hard they try some "illegal" content will slip through, putting them at risk of being fined by the Indian government, what reason is there for said service to bother remaining available in India?

    These clowns are going to drive their country back into the pre-internet dark ages.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 26 Feb 2021 @ 1:20pm

      These clowns are going to drive their country back into the pre-internet dark ages.

      I think that’s the point.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Feb 2021 @ 3:18pm

        Re:

        That would be a poor choice considering that huge amounts of money come in through microsoft support scams, among others.

        reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 28 Feb 2021 @ 4:41am

      Re:

      These clowns are going to drive their country back into the pre-internet dark ages

      They tried it in Kashmir, and Grand Poo-Bah Narendra ``Dehati Aurat'' Modi seemed satisfied with the results. Why not do it on a larger scale?

      From the outside, this actually would seem a good thing. How many calls per day do we receive from boiler rooms in India, Pakistan, and Bang-the-Desk, offering to lower credit card rates, extend auto warranties, or help with windows problems?

      Depending on where you are located, speaking softly to the scammers for a little bit, and then firing a boat horn into the phone, may be a good plan. If you are in an area where a loud noise would be a problem, do not try this.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Feb 2021 @ 2:21pm

        Re: Re:

        Unless the law also shuts down phone services I don't see how you can possibly claim this will have any effect on scam calls.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 1 Mar 2021 @ 12:51am

          Re: Re: Re:

          I read that some are lamenting the fact that people no longer answer the phone.

          reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 21 Mar 2021 @ 12:18am

          Re: Re: Re:

          Unless the law also shuts down phone services

          A lot of phone services operate over the internet. Indeed, it may be cheaper to have a good internet connection than to bring enough T1 lines to operate the boiler room.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 1:43pm

    Well, that law is one way of telling the population to shut up and obey the government.

    reply to this | link to this | view in chronology ]

  • icon
    TaboToka (profile), 26 Feb 2021 @ 2:21pm

    It doesn't appear on the surface to be horrible, just bad.

    First off, the service (Facebook/Twitter) just has to send its (Indian IP) users an email with the list of forbidden subjects/items listed above every month. More spam for the spam-bucket.

    Then FB/T just has to disavow all knowledge of anything; when the Indian government sends FB/T a court order that XYZ post violates the new rule, then FB/T just has to hide the post from all Indian IPs.

    Paragraph #9 is impossible, technically: they have to use automated tools to remove "forbidden" content. Not going to happen. Or they can just scan text for the word "tobacco" and call it good. Users will figure out they can use "bacca" or "t0bacc0" or whatever to get around the filter.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 1 Mar 2021 @ 3:02am

      Re:

      "It doesn't appear on the surface to be horrible, just bad."

      Everything is relative. In India's case it's just one more piece of catch-all legislation enabling the government ultimate authority over the "democracy" used as window dressing.

      Considering that we're talking about a nation which seriously thought about using "racial purity" to deprive a significant minority of its citizenry their citizenship here...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Feb 2021 @ 2:37pm

    This should be a good example for all to see just how bad is will be, and then decide that we do not want that here.
    lol

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Enhanced Cooperation Procedure, 26 Feb 2021 @ 6:23pm

    "passive" is what Section 230 provides, NOT editing / curating

    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.

    Right now in the former US of A, Facebook / Google / Twitter monitor continually by their corporate notions of acceptable and then edit or curate at their whim, so the time factor is irrelevant.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Enhanced Cooperation Procedure, 26 Feb 2021 @ 6:23pm

      Re: "passive" is what Section 230 provides, NOT editin

      The Indian government grants Safe Harbour to "passive" conduits of information.

      First, "grants" can be removed when don't serve public / gov't interest, as Section 230 should be removed now that corporations have become harmful to public discourse.

      reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Enhanced Cooperation Procedure, 26 Feb 2021 @ 6:24pm

      Re: "passive" is what Section 230 provides, NOT editin

      The new law pretty much abolishes those because complying with the law turns intermediaries from "passive" to "active."

      Facebook / Google / Twitter decided all by themselves to do that using their own notions of "standards". You actively support Facebook / Google / Twitter doing that directed against half of the US population simply because you leftists label pro-American / populist / Constitutionalist as "dangerous". -- That's another argument which you'll gainsay, but in practical fact, what you got from the stolen election is: a geezer clearly losing his mind, a bunch of kooks in the new Admin like fat geezer pretending he's a woman, and "your" party will probably do away with Section 230! Enjoy.

      reply to this | link to this | view in chronology ]

      • icon
        AC Unknown (profile), 26 Feb 2021 @ 6:42pm

        Re: Re: "passive" is what Section 230 provides, NOT ed

        [Citations required]

        reply to this | link to this | view in chronology ]

        • This comment has been flagged by the community. Click here to show it
          identicon
          Enhanced Cooperation Procedure, 26 Feb 2021 @ 7:17pm

          Re: Re: Re: "passive" is what Section 230 prov

          It's ongoing argument. YOU have to make a positive case, not just repeat Techdirt's lies. -- I don't expect it. Heck, you're not up to more than trite phrase.

          And "YOU" are Timothy Geigner using your "AC Unknown" sock-puppet, which is also obvious. "You" didn't comment a total of 58 months, yet NOW you're hot on monitoring the site late on a Friday night? -- That's clear EVIDENCE that "you" are a sock puppet.

          reply to this | link to this | view in chronology ]

          • icon
            AC Unknown (profile), 26 Feb 2021 @ 9:08pm

            Re: Re: Re: Re: "passive" is what Section 230

            Nope. That's not how it works. You make the claim, you have to supply the proof, and extraordinary claims require extraordinary proof.

            reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 26 Feb 2021 @ 9:17pm

            Shut up, Wallace!

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 26 Feb 2021 @ 10:24pm

            Re: Re: Re: Re:

            Then where's your positive case in defense of Richard Liebowitz, asshole?

            reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 2 Mar 2021 @ 7:49am

            Re: Re: Re: Re: "passive" is what Section 230

            "It's ongoing argument. YOU have to make a positive case..."

            Bullshit. Just because you scream and holler that there's a teapot orbiting mars doesn't mean we have to consider your statement valid. Extraordinary assertions require extraordinary evidence. Go look at how logic works, sometime.
            Hell, let's take a look at this brilliant gem of clownery you pulled out of your ass again;

            "You actively support Facebook / Google / Twitter doing that directed against half of the US population simply because you leftists label pro-American / populist / Constitutionalist as "dangerous"."

            ...says the guy who just proved that he himself is a bloody marxist and tries to piss all over his precious constitution all in one go. Since when did the right wing ever fear private entities making free use of their own property? Since when was owning a platform "unconstitutional"?
            Here's a tip, genius - go read the constitution once. It's not that hard to understand and backs none of your assertions. You know what does? Two books - mein kampf being one of them and Chairman Mao's little red book being the other. Both of which use almost exactly the same language you do in trying to imply the evil capitalists use the media to bully the will of the people.

            Stop even pretending, Baghdad Bob. Your arguments come from Marx and Hitler, which isn't a good look when you're trying to make an "anti-left" assertion.

            "And "YOU" are Timothy Geigner using your "AC Unknown" sock-puppet, which is also obvious."

            As if anyone on Techdirt needs to log in as a sock puppet when the average sane and rational person feels compelled to counter your nonsense anyway...

            "That's clear EVIDENCE that "you" are a sock puppet."

            No, that's just you failing to realize that normal people have lives outside of the internet. But hey, Baghdad Bob, by now you've made that same claim about sock puppets and zombies about roughly half of the regular commenters around here, so I guess whoever AC unknown is he'll just have to roll with it, flag your ass as the paranoid schizophrenic that you are, and move on.

            reply to this | link to this | view in chronology ]

          • icon
            bhull242 (profile), 2 Mar 2021 @ 3:30pm

            Re: Re: Re: Re: "passive" is what Section 230

            YOU have to make a positive case, not just repeat Techdirt's lies.

            That’s not how logic or arguments work. If the first person makes a positive claim, they have the burden of proof and, thus, have to make a positive case in order for their claim to be taken seriously. If the first person makes a negative claim, then the other side has the burden of proof by providing a counterexample or showing that the negative claim is inconsistent, and so they’d have to make a positive case that disproves the negative claim.

            In this case, you made the following positive claims:

            1. Facebook, Google, and Twitter “decided all by themselves to [become ‘active’ rather than ‘passive’ under Indian law by] using their own notions of ‘standards’.”

            2. Techdirt is “leftist”.

            3. Techdirt “label[s] pro-American[s] / populist[s] / Constitutionalist[s] as ‘dangerous’.” (And, by implication: those labeled by Techdirt as dangerous are pro-American, populist, and/or constitutionalist and are labeled as such because they are pro-American, populist, and/or constitutionalist and/or espousing ideas that are pro-American, populist, and/or constitutionalist.)

            4. Leftists “label pro-American[s] / populist[s] / Constitutionalist[s] as ‘dangerous’.” (And, by implication: those labeled by leftists as dangerous are pro-American, populist, and/or constitutionalist and are labeled as such because they are pro-American, populist, and/or constitutionalist and/or espousing ideas that are pro-American, populist, and/or constitutionalist.)

            5. Techdirt “actively support Facebook / Google / Twitter doing [#1] directed against half of the US population […]”.

            6. Techdirt does #5 “simply because” of #3 and/or #4.

            7. That the 2020 election was stolen.

            8. That Biden is “a geezer clearly losing his mind.”

            9. That there are “a bunch of kooks in the new Admin[istration].”

            10. That one of those “kooks” is a “fat geezer pretending he's a woman.”

            11. That Techdirt writers consider themselves to be part of the Democratic Party. (Note that this is not the same thing as being leftist. Many leftists, even if only considering American citizens who live in America, are not Democrats, and not all Democrats are leftist.)

            12. That the Democratic Party “will probably do away with Section 230.”

            Some of these claims are more likely to be true than others, some are more relevant than others, but you have not given evidence or citations for any of them. For this reason, the comment you’re responding to asked for citations for one or more of those claims. They do not have to present a positive case in order to do so. You made the positive claim here, not them.

            If you’re talking about the claim made in the article that “[t]he new law pretty much abolishes those [Safe Harbors] because complying with the law turns intermediaries from "passive" to "active," the commenter is not Techdirt and did not make that claim themselves, nor did they say they necessarily agree with that claim. Thus, they have not taken on the burden of proving that claim; only Techdirt does, and they have presented evidence and arguments supporting their claim in the article. The commenter, though, has no need to provide any evidence in order to ask for your evidence. (Also, contrary to your assertion, the commenter repeated nothing Techdirt said.)

            Only one or maybe two of your claims even appear to address that claim, and even then, they do not contradict the claim itself, as both your claims and Techdirt’s claim can be true or both can be false. (Note that Techdirt’s claim doesn’t solely apply to Google, Facebook, and Twitter but to any intermediary like 4chan or 8kun, which have far less moderation than those companies.) But even if they were mutually exclusive, they are both positive claims, so even if Techdirt has to make a positive case for their claim (which they already did), so do you (which you have not). So, again, asking for you to present evidence supporting your claims does not require presenting a positive case for their claim.

            And "YOU" are Timothy Geigner using your "AC Unknown" sock-puppet, which is also obvious. "You" didn't comment a total of 58 months, yet NOW you're hot on monitoring the site late on a Friday night? -- That's clear EVIDENCE that "you" are a sock puppet.

            No, it is not. For one thing, AC Unknown has commented several times recently. I know because I distinctly remember you making these exact same accusations towards them before, minus the ones about monitoring the site late on a Friday night (which itself presumes that they are in the same time zone as you are).

            More importantly, even assuming for the sake of argument that your allegations regarding their being inactive for 58 months prior to this one comment, it doesn’t prove anything other than the fact that they did not write comments for 58 months. It certainly does not prove your claim that they are a sock-puppet account for Tim Geigner. This has been pointed out to you numerous times, just about every time that you make this argument. There are plenty of alternative explanations, like being busy with other stuff or having nothing they want to say until now, and there is not a single known instance of an account being dormant for a long period of time suddenly being used as a sock-puppet account anywhere outside of your accusation against Techdirt and so-called “zombie accounts”. Sock-puppet accounts aren’t generally taken from an existing user but are created for the purpose of being used as a sock-puppet account, and they are not known for having long periods of inactivity. There is zero connection between your premise and your conclusion; if anything, your premise would be more likely to disprove your conclusion. There is nothing suspicious about a 58-month-long gap in commenting activity (but not necessarily viewing, flagging, first-or last-word-ing, or voting a comment insightful and/or funny) from an account used for the comment section of a news/opinion site.

            There is also nothing suspicious about “monitoring [a] site late on a Friday night.” If anything, I’d expect more activity from an account late on a Friday night given that it’s the start of the weekend, a time schools and many jobs have off every week, and it’s the last day of each week that Techdirt posts new articles with news and/or opinions rather than contest results, a look into Techdirt history, or winners of the Funniest and/or Most Insightful Comments. And, as I mentioned earlier, for all that you know, it wasn’t necessarily late on a Friday night for AC Unknown when they made the post because you don’t know what time zone they live in and the times given for when the comment was posted are after being converted to your local time zone (or whatever time zone your device or browser is configured for). Just because the timestamp that you see says it was posted late on a Friday night doesn’t mean that that was the time for the commenter when they submitted it. But, again, that claim is completely pointless anyways as, even if it’s true, it doesn’t prove anything that you claim at all. There is zero connection between your premise and your conclusion once again. It is completely and utterly irrelevant.

            And even if AC Unknown’s account is being used as a sock-puppet account (and, as mentioned, we have absolutely no reason to believe that it is, at least given only the content of the comment itself and what you’ve provided as supposed evidence), you’ve provided nothing to prove that it was Tim Geigner doing so or that Tim Geigner uses sock-puppet accounts at all. So, once again, you’re failing to provide proof of your claim. Now, unlike the other claims, there is some connection, in that AC Unknown’s account being used as a sock-puppet account is a necessary condition for it to be used as such by Tim Geigner, but it is not a sufficient condition, and the alleged gap in activity and the timing and content of the comment do nothing to add to that, so you haven’t really made an adequate case even if we throw you quite a few bones.

            This is why no one takes you seriously. You make lots of positive claims, many of which are outrageous, generally without providing any evidence to support them; claim that anyone who asks you to provide evidence of those claims must provide a positive case/has the burden of proof and then fail to present the evidence you were asked for; and constantly repeat the same conspiracy theories that are based upon arguments that are clearly invalid and not at all convincing, simply asserting that the premises you give are “clear evidence” that your conclusions are not only true but “obvious” (sometimes even your premises fail to be supported, making whether the argument is invalid unnecessary to showing that it may not be sound).

            reply to this | link to this | view in chronology ]

  • icon
    GHB (profile), 26 Feb 2021 @ 7:26pm

    Impossible expectation for OSPs to police = OSPs are criminals

    If it is a law you cannot follow, then the law is designed to make you a criminal.

    reply to this | link to this | view in chronology ]

  • identicon
    JohnDoe, 26 Feb 2021 @ 10:56pm

    India is a sovereign nation

    it can do whatever it wants.

    It's better to be censored by a sovereign state that is at least theoretically accountable to people than faceless corporate monopolies accountable to no one.

    ToS for any of the major platform are equally vague and allow banning users for any arbitrary reason whatsoever. All the corporate big tech platforms have become editors long time ago and have been pretty liberally banning users for their political views so zero sympathy.

    Its funny to see companies like Twitter crying about free speech in India. The hypocrisy known no bounds.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 1 Mar 2021 @ 4:06pm

      Re: India is a sovereign nation

      It's better to be censored by a sovereign state that is at least theoretically accountable to people than faceless corporate monopolies accountable to no one.

      That is the exact opposite of what is true. A corporation’s reach extends no further than their own property, and the punishments are minor. A sovereign state is capable of extending to everyone’s property within their jurisdiction and can lead to imprisonment or even death.

      reply to this | link to this | view in chronology ]


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