IMI stated in its representations that it welcomes the introduction of the 2018 draft Intermediary Guidelines as it provides an opportunity to modernise the intermediary liability law in India. In its representations, IMI raised concerns about the growing menace of piracy.
IMI raised specific concerns relating to:
(i) regarding safe harbour – safe harbours should be limited to technical, automatic and passive intermediaries and on the condition that they operate in the manner expected of a diligent economic operator. IMI proposed specific amendments accordingly to Rule 3(3) of the 2018 draft Intermediary Guidelines and Section 79 of the Information Technology Act, 2000.
(ii) removal of the notice and takedown provision- the proposed 2018 rules must re-introduce the deleted Rule 3(4) of InformationTechnology (Intermediaries guidelines) Rules, 2011 ("2011 Rules") which mandated intermediaries to take down content falling within Rule 3(2) pursuant to a notice given by an affected person. In the absence of such a provision, content falling within Rule 3 (2) can only be removed pursuant to a court order or a government direction. Such a rule ties the hands of the IMI members as well as the whole creative industry. The intermediary should be obligated to act as a diligent economic operator and take down content if it becomes aware or should reasonably have been aware of facts or circumstances, from which infringing activity is apparent. In addition, once an intermediary “takes down”something on notice, it should be responsible for such infringing matter to “stay down”;
(iii) While supporting the inclusion of Rule 3(9) for intermediaries to deploy automated tools to identify and remove content, IMI stated that “unlawful content” should explicitly include content which infringes intellectual property as well as enforcement provisions be introduced to prevent any violation of Rule 3(9) by an intermediary.
The full representation is attached here.