Proposed changes to IT Act unlikely to solve core issues: Experts

Experts say changes are more 'cosmetic', can be misused by enforcement agencies

The government’s move to effect certain changes to the Information Technology (IT) Act in order to deal with online disinformation, fake news, and child pornography is seen by experts as a half-hearted and cosmetic approach to solve these issues. 

“I believe a lot of work has to be done. These (changes) are vague, broad, and overreaching. There are no effective checks and balances,” said Pavan Duggal, a top cyberlaw expert and a Supreme Court (SC) lawyer. “There’s a need to have a more holistic and well-thought-out method,” he said, adding, “Rather than these cosmetic cut-and-paste approaches” which, in the long-term, will not benefit the country.

The government has started a process to amend Section 79 of the IT Act, 2000. Experts say this will have a huge impact on social media companies such as WhatsApp, Facebook, Twitter, and Google, which have been defined as ‘intermediaries’ that use the internet to provide services. For example, when required by lawful order, ‘the intermediary’ shall, within 72 hours of communication, provide information or assistance related to the origin of any content considered unlawful and remove it. 

But this would enable the government to arm-twist only big players such as WhatsApp. “The people who are creating or distributing content considered unlawful can switch to free and open-source software-based encrypted messaging platforms such as Signal and “the government won’t be able to make those platforms comply,” said Sunil Abraham, executive director at the Centre for Internet & Society. He said going after the source - people who produce child pornography and distribution hubs - is more important rather than breaking end-to-end encryption. 

“There is a need to set up an indigenous organisation in the country like the UK-based Internet Watch Foundation (IWF), which has a comprehensive database of India-specific child sexual abuse images and videos,” said Abraham. IWF’s work focuses on the removal of such data from the internet.

“The proposed changes will create more confusion than provide solution,” said Salman Waris, managing partner at Delhi-based specialist technology law firm TechLegis Advocates & Solicitors, adding, “It would give the government blanket power to access your private information on the social media and lead to violation of the SC’s order on privacy.”

Experts also believe that the proposed changes would require intermediaries, including social media firms, to invest more into creating infrastructure to proactively identify and trace the unlawful content. “Some intermediaries will be required to create a physical presence in India,” said Arun Prabhu, a partner at law firm Cyril Amarchand Mangaldas. 

He said the bigger intermediaries with more than 5 million users would be required to comply with new obligations such as having permanent registered offices in the country, which will be accountable for any sort of legal, administrative, and taxation requirements. They also need to appoint senior points of contact to coordinate with law enforcement agencies, round-the-clock. 

The move is also likely to impact smaller companies and start-ups, as they need to make substantial investments in technology to respond promptly to notices and takedown requirements.

“The apprehension is that that it can give a chance to the (law enforcement) officials to act in an arbitrary way in some cases. You can’t equate a start-up with a large player like Facebook and WhatsApp. One act of any non-compliance … can become an issue for it,” said Sudhir Singh, a Fellow at software product think tank iSPIRT. The industry body is soon going to send its responses to the Ministry of Electronics and Information Technology (MeitY), after deliberation with the member companies.

On January 5, the MeitY is meeting members of different advocacy groups related to internet freedom and discuss the proposed changes to the IT Act.