The IT (Intermediaries Guidelines) Rules, drafted to protect intermediaries, now appear to be a tool that can be used to harass them.
EIGHT years ago, the chief executive officer of an auction portal was put behind bars because a user put an obscene MMS clip up for sale on the site. This sparked a demand from intermediaries, the entities that provide services enabling the delivery of online content to end-users, that the government amend the Information Technology Act, 2000, in order to provide them protection from liabilities arising out of user-generated content. Thus, Section 79 of the IT Act was amended through the IT (Amendment) Act, 2008, to provide intermediaries with what was called safe harbour protection. The notion of safe harbour protection was itself conditional on the intermediaries observing “due diligence” while discharging their duties and observing government guidelines. These guidelines were notified last April in the form of the Information Technology (Intermediaries Guidelines) Rules, 2011. What was demanded as a provision to protect the intermediaries from harassment turned into a veritable nightmare.
Organisations such as Software Freedom Law Centre, Knowledge Commons, and Free Software Movement of India, which are spearheading the campaign against the rules, feel that the government went beyond its mandate and that the rules violate constitutional rights to freedom and privacy. P. Rajeev, Rajya Sabha member of the Communist Party of India (Marxist), or CPI(M), has moved a statutory motion, and it is listed for discussion in the current session of Parliament. The motion seeks to annul the rules, which, according to him, Parliament never got the opportunity to discuss. “This is the first time perhaps that a statutory motion has been moved to annul rules of an Act. A statutory motion is also the only procedure through which the rules can be discussed. The existing rules of 2009 were sufficient. They came under the purview of Article 19(2) of the Constitution, which places reasonable restrictions on the right to freedom. The new rules go beyond the Act and the Constitution itself,” Rajeev told Frontline.
The Software Freedom Law Centre has submitted representations to the Parliamentary Committee on Subordinate Legislation, which can recommend the government to amend the rules. Rajeev explained that under the present system, the executive was empowered to make amendments in rules, and some Acts even included enabling provisions to give the executive powers to make and amend rules. He described it as one of the weaknesses of the system that the executive could override all recommendations of Standing Committees and that there was no mechanism to follow up on the recommendations. “I am not against regulations. But at present the rules go beyond what are described as reasonable restrictions,” he said.
Intermediaries include Internet service providers (ISPs) such as Airtel or the MTNL that help users get connected to the Internet; search engines such as Google or Bing that allow users to search for specific information on the web and provide links to websites; Domain Name System (DNS) providers that translate domain names to addresses that can be understood by computers; web hosts that provide space on server computers to place files for various websites so that they can be accessed by users; and interactive websites, including social media sites such as Facebook and Twitter, blogging platforms such as WordPress and Blogspot, and auction sites. Cyber cafes are also brought under the category of intermediaries.
The concept of safe harbour protection for intermediaries is not new. Governments across the world have ensured intermediaries protection from legal liabilities that may arise out of illegal content being posted by users. Section 79 of the Indian IT Act was introduced precisely to give such protection.
According to the new rules, any person aggrieved by any content on the Internet can ask the intermediaries to take it down, and they are obliged to remove this within 36 hours from the time of receipt of the complaint. The rules do not provide the creator of the content an opportunity to respond to the complaint. They also do not mention that the user who posted the content should be informed about the complaint. Those intermediaries who do not comply with the take-down notice lose protection from any legal liability that could arise. They, therefore, also lose the safe harbour protection under provisions of Section 79.
There are now broad categories of content that are prohibited from being posted online. These are listed in the rules and are wide open to interpretation. For instance, users and intermediaries are forbidden from hosting information that is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful or racially, ethnically objectionable, disparaging, relating to or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever; that harms minors in any way; that infringes any patent, trademark, copyright or other proprietary rights; that violates any law for the time being in force; that deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature; or that impersonates another person.
Those lobbying against the rules argue that the terms describing unlawful content are ambiguous and not defined anywhere in the rules or in the IT Act. “For instance, what constitutes blasphemous is not defined. It can be anything and is open to interpretation. The terms can mean different things to different people,” said one software professional. The argument is that the rules need to be clear as to what is allowed and what is prohibited in the country. What one person considers defamatory may be political satire to another. Infringement of proprietary rights is best left to the judiciary and experts, and businesses cannot be closed down on the basis of whims, it is argued.
The rules do not stop at the intermediary alone. They empower the government to access user information from the intermediary and give the intermediary the power to deny users access. The rules require intermediaries to cooperate with government agencies and provide them information for the purpose of verification of identity or for prevention, detection, investigation, and prosecution when a request has been made by the agency in writing. Users have been left at the mercy of the intermediaries as the latter can decide whether they can use the Internet. The guidelines are skewed against the creators of content and will, therefore, affect interactive websites. The rules are silent on any penalty for frivolous complaints and do not place the onus of providing evidence on the complainant.
The question arises whether the government has gone into overdrive to regulate the new media. While the rules that emerged were originally in response to a need to protect the interests of intermediaries, there is widespread consternation now at the consequences for them and users if the rules are passed by Parliament. A debate has started across the country, and as Rajeev pointed out, this was the first time the cyber community was mobilising itself for intervention in Parliament. An online petition, too, was doing the rounds in support of the annulment motion.
On May 3, a cross-section of politicians and representatives of some of the intermediary groups met to discuss the rules and the annulment motion. It was surprising that barring Rajeev and a few others, those who met had little knowledge of and little interest in the clauses in the rules and were rather wary of the powers of the cyber world. There was admittedly confusion among political parties, not because they do not support ideas of freedom of expression but because, it was apparent, they had not studied the matter enough.
While the representatives of the ruling party and the Bharatiya Janata Party clearly had not studied the aspect thoroughly and sought more clarity on the problems with the guidelines, Rajeev got support from his Rajya Sabha colleague Rajeev Chandrasekhar, an independent member, who endorsed his views on the matter. He appeared to have studied the issue in detail. He was emphatic that the background of these rules was in the context of the Jan Lokpal and anti-corruption movement. He made it clear that he was not against rules and regulations though, in his opinion, these particular rules were not workable.
“As a country, we are in favour of open Internet. The multi-stakeholder nature of the Internet cannot be altered,” he said, adding that the Internet represented a brand new notion of freedom of speech. He said that he did not even want to talk about the vagueness of the terms such as blasphemy used in the rules.
Y.S. Chowdary, Rajya Sabha member from the Telugu Desam Party, who was also part of the panel, made his views clear; he felt that the Internet was a new medium, so the conditions that applied to the print and electronic media could also be applied to it and there was no need to go either the “American” way (denoting unbridled freedom) or the “Chinese” way (denoting restrictive freedom).
While it was gratifying that a few MPs were making an attempt to understand the rules and their long-term implications, Kiran Chandra of the Free Software Movement of India described the rules as an “emergency without an emergency”. He said he was unable to understand the government's motives. “First, they allow the technology for the first two decades. And then they restrict any activity they feel that might be against the state,” he said. Chandra read out a statement by Ambikesh Mahapatra, a professor of chemistry at Jadavpur University who was persecuted for having forwarded an e-mail caricaturing West Bengal Chief Minister and former Union Railway Minister Mamata Banerjee. He was charged with offences under the Indian Penal Code for defamation, insulting the modesty of a woman and cyber crimes. He was not only assaulted by supporters of the ruling party in West Bengal but also had to spend a night in jail.
Mishi Choudhary, the executive director of the Software Freedom Law Centre, and Chandra feel that restrictions should be limited to hate speech and pornography and should be within the exemptions as laid down under Article 19(2) of the Constitution.
Organisations such as theirs also maintain that as the definition of intermediaries is wide and includes entities from ISPs to search engines, it is not practical to have a homogenous set of terms of conditions for all users. In addition, they have stated that in the event of government agencies demanding access to the private information of users held by intermediaries, due process of law as laid down in the rules notified under Section 69 of the parent Act should be followed. They argue that the creator of the content has to be given a chance to be heard and that there should be a mechanism to put back content if the complainant does not furnish within a definite period a court order for its removal.
It is clear that a wider discussion is necessary on the rules, especially as intermediaries and their representatives are not averse to regulations. But, as they say, the regulations have to be reasonable and not with the intention to persecute or violate the right to privacy guaranteed under the Constitution. It remains to be seen whether the statutory motion will succeed in getting the rules annulled or even trigger a detailed discussion in Parliament.