Draft IT rules need holistic re-look, traceability clause against right to privacy: Nasscom

IT body Nasscom has said the traceability requirement being proposed under the amended IT rules appear to be in "contravention" to the right to privacy, and called for a "holistic re-look" as well as further detailing on the entire issue.

The comments come in response to the changes proposed by the government in IT (Intermediary Guidelines (Amendment) Rules, 2018 that will tighten noose around Internet platforms, and raise their accountability in the backdrop of spread of fake news on social media outlets.

"This requirement appears to be in contravention of the right to privacy which was recognized as a fundamental right by the SC... We suggest that the requirement to enable tracing the originator of content does not appear to meet the tests of necessity and proportionality and should be deleted," Nasscom said in its submission.

In a separate statement, Nasscom Wednesday also advised against a generalised approach to classify 'intermediaries' - entities offering services through digital platform. These include companies ranging from messaging apps, social networking platforms, fintech apps as well as other Internet-led businesses.

The IT body argued that distinction needs be made in the "magnitude of oversight" and due diligence that such platforms undergo since "not all of them enable users to share content with others or make it available to the public".

It explained that several intermediaries involved in business-to-business roles do not fit in the concerns around fake news. Also, many platforms -- like payment based firms and telecom companies -- are already regulated by entities like the Reserve Bank of India and the telecom department and norms that are even more stringent than the Intermediary Guidelines 2011.

"A distinction needs to be made in terms of the magnitude of oversight that is applied to such entities and the diligence that must be imposed on them accordingly," Nasscom said.

Asserting that a holistic re-look is required on the issue, Nasscom said it needs to be kept in mind that the purpose of the guidelines "is to provide due diligence requirements to avail safe harbour and nothing more".

The industry body has also requested for procedural safeguards, and asked for specifications on which government entity can pass the order, along with a specific reason to be provided for any takedown requests.

In its recommendations, Nasscom said it is imperative that such safeguard be built into the Intermediary Guidelines 2011 to ensure transparency, given that any takedown request is likely to have an impact on the right to freedom and speech and expression.

The body said it will continue to actively work with the government on formalising these guidelines and creating an optimal framework that can be conducive for the industry at large.

The government had sought public feedback on the proposed changes in IT rules, and the last date for submission of the comments by stakeholders was January 31.

In its response, the Cellular Operators' Association of India (COAI) had said the draft amendment proposes changes that could be "detrimental" to citizens, democracy and free speech.

"The amendments pose several critical impediments to the right to privacy of individuals...," the COAI said.

It rued that lack of clarity in the proposals could result in "onerous obligations" that are likely to potentially drive several intermediaries out of business in India and preclude the possibility of new intermediaries developing in the future.