The Indian Express, during the time of emergency, published its newspaper with a blank editorial page to protest against the censorship policies of the Government. The Internet as we know in India today, will soon have a lot of blank pages, thanks to the intermediaries being forced to censor content. The Information Technology (Intermediaries guidelines) Rules, 2011 notified under the provisions of the Information Technology Act, 2000 lays downs stringent guidelines for intermediaries and threatens freedom of speech and expression on the internet.
In return for offering the intermediaries a safe harbour, the new rules demand the intermediaries to don the roles of a judge and censor. As per the Act, intermediaries include telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, on-line payment sites, on-line auction sites, on-line market places and cyber cafes. This wide list of services included in the list of intermediaries will result in a more controlled (read censored) internet. The new rules laying down guidelines for intermediaries expect the intermediaries to disable information within 36 hours, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person that the information:
(a) belongs to another person and to which the user does not have any right to;
(b) is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;
(c) harm minors in any way;
(d) infringes any patent, trademark, copyright or other proprietary rights;
(e) violates any law for the time being in force;
(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
(g) impersonate another person;
(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource; (i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.
In short, the intermediary is expected to act as the super-judge deciding what is:
•Blasphemous– I thought only our western neighbour(No names, lest the web hosting company be forced to take this site off as violative of Rule 3.(2)(j) - insulting any other nation) had such rules. The Indian Penal Code does not define blasphemy. The closest offence one can find is Section 295A that deals with deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Defamatory, libellous– Deciding defamation/libel is no easy business for a Court of law, and the intermediary is expected to do that now. Infringement of Patent, trademark, copyright– The intermediary will soon need to have experts in every possible field to decide on infringement of intellectual property rights. Belongs to another person– any investigative reports quoting communications could come under this.
The DMCA, that governs online copyright violation in the US, provides a put-back provision to protect the interest of the user who posts the content online. The new rules do not have any put-back provision to protect the interests of the user and is thus heavily skewed against the creator of online content. In practice, the intermediaries, instead of deciding whether an information is in contravention of sub-rule(2) of rule 3, will end up disabling access to any information on receiving a take-down request, to ensure that they are not held liable. The rules, by putting restrictions on intermediaries will, in effect, would result in self-censorship and will have a chilling effect on online speech.
Although, reference to the term blogger, that was introduced in the draft rules, is not included in the notified rules, a blogger will squarely come under the definition of the term "user" and will be subject to restrictions imposed on content that can be posted on blogs and websites provided by intermediaries. The removal of content created by a blogger or any user could be a clear restriction of his freedom of speech and expression and such curtailment of freedom can only be done if it falls under reasonable restrictions imposed under Art. 19(2) of the Constitution .
The rules by forcing the intermediary to provide details of users to government agencies without any judicial order, puts the user at a risk of harassment by law enforcement agencies. The rules that mandate providing of information to government agencies on a mere written request will have major ramifications on the privacy of a citizen and will amount to "wire-tapping of the internet"
Let us consider a few instances were an intermediary could be forced to disable information posted:
Posts on Wikipedia - Many posts on Wikipedia could be considered obscene or defamatory
Wikileaks - Content posted on Wikileaks could be considered as belonging to another person and defamatory or libellous or disparaging. Intermediaries ranging from hosting providers to on-line payment sites could be forced to disable such information.
Online citizen journalism - Many topics touching on corruption could be noted to be defamatory and libellous or disparaging. Blogs - Blog posts on controversial topics ranging from insurgency to corruption could be considered violative of the rules.
The rules in the current form may be beyond the rule making power of the Government and could be unconstitutional as well as ultra-vires of the Act. The 2008 Amendment of the IT Act was a reaction to the 26/11 Mumbai attacks and these rules seem to be the result of a paranoia that seems to have gripped the Government after the developments in Tunisia and Egypt and the Wikileaks phenomenon.
Justice V.R.Krishna Iyer, while deciding a matter on the power of Government to seize a book written by Periyar EVR , a political figure and rationalist, inState of Uttar Pradesh Vs. Lalai Singh Yadav, AIR 1977 SC 202, 1976(4) SCC 213, observed:
"India is a land of cultural contrarities, co-existence of many religions and anti-religions, rationalism and bigotry, primitive cults and materialist doctrines. The compulsions of history and geography and the assault of modern science on the retreating forces of medieval ways-a mosaic like tapestry of lovely and unlovely strands-have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life. Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture. From Galileo and Darwin, Thoreau and Ruskin to Karl Marx, H.G. Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements-avoiding for a moment great Indians from Manu to Nehru. Even today, here and there, die-hards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them."