Industry, civil society pan EC's demand to be included in IT law amendment

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Industry and civil society organisations have opposed the Election Commission's demand to be included in a proposed change to India's technology laws that deals with taking down content hosted on online, social media and messaging platforms. 

An ongoing consultation by the Ministry of Electronics and Information Technology has proposed changes to Section 79 of the Information Technology Act, 2000, seeking to regulate a set of companies that qualify as intermediaries, and covers the likes of Facebook, Twitter, WhatsApp, and Google. 

The proposed changes include asking companies to notify users about their privacy policy at least once every month, assisting a government agency in an appropriate manner within 72 hours of communication and take down or disable access to content specified by the draft law. 

In the comments made to MeitY as part of the consultation, the Election Commission of India has asked that a clause be added to the proposed rules so they apply to “violation of any of the provisions of election law or/and directions of the Election Commission, during the period of any election.”

In counter-comments made to submissions from different stakeholders, several entities disagreed with the ECI's demand and said existing laws were enough to deal with electoral processes, and do not require a modification in the IT Act. 

"This proposal from the Election Commission implies a desire for [permanent] powers over “platforms”, which would result in the unintended consequence of making the process of election restrained and unfair, contrary to the intentions of the Election Commission to ensure fair election," said Sivasubramanian Muthusamy of the Internet Society, Chennai.

The Asia Internet Coalition, an industry association for Internet policy issues in the Asia Pacific region, and includes members like Amazon, Twitter and Facebook and LinkedIn, said the ECI demand "goes over and beyond the proposed amendments. The terms “any provision of election law” and “directions of the ECI” are not precise phrases and are vague in nature. Using vague phrases for restricting free speech is not constitutionally permissible".

Industry association Internet and Mobile Association of India also said the demand of ECI was very vague and overboard, and does not require amendments in the IT Act. "The existing provisions of the Representation of People Act, 1951, Indian Penal Code, 1860 and Model Code of Conduct already deal with offensive electoral content, and the platforms already abide by those. There is no need to install any further compliance under the exception clause of the IT Act," the IAMAI said in its submission. 

The Software Freedom Law Centre, a legal non-profit acknowledged that the misuse of intermediary platforms for influencing elections in nation states is a real problem, which warrants urgent attention, but the Election Commission's recommendation to prohibit content on platforms which violates election law during elections "will have a chilling effect on speech and might disturb the sanctity of free and fair elections...and impede free speech right of citizens".


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