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All Posts | Feb 19,2019

Submission to Parliamentary Committee on Information Technology

Parliamentary Committee on Information Technology invited views on the issue of “Safeguarding Citizens Rights on Social/Online News Media Platforms”. The views were heard on 11th February 2019 along with inputs from MeitY and Twitter.

We at SFLC.in made our submission on common forms of harm on the internet, common remedial measures undertaken or provided by online platforms and the existing legal provisions. We also submitted our recommendations supporting right to privacy, endorsing strong encryption, emphasising importance of safe harbour for intermediaries, advocating wider consultations for finding solutions to tackle hate speech, opposing proactive monitoring of content and suggesting that intermediaries be free to come out with their own Terms of Service. Our submitted views are given below:

All Posts | Feb 19,2019

Submission on Surveillance Industry and Human Rights to the UN Special Rapporteur

UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression had invited comments on the surveillance industry and human rights. In 1993 the United Nations Commission on Human Rights established the mandate of the Special Rapporteur that included gathering information on violations, responding to credible information, making recommendations and contributions to provision of technical assistance or advisory services by Office of the United Nations High Commissioner for Human Rights (OHCHR) to better promote and protection right to freedom of opinion and expression.

Last date for submissions from States, civil society, private businesses, and other interested stakeholders was 15th February 2019. The Special Rapporteur requested concise comments on domestic regulatory framework on development, marketing, deployment, facilitation and use of surveillance technologies. The aim of this exercise is to study obligations and responsibilities of States and businesses in the light of human right standards.

We have made our submissions highlighting the domestic laws, regulations, judicial decisions on the use of surveillance technologies in India and their consistency with human rights standards. These submission detailed below will be posted on the OHCHR website at the time of the report’s publication.

All Posts | Mar 05,2012

Look Who’s Watching

Do you think someone is looking over your shoulder as you type an email, buy grocery or fill a simple raffle for that fair you visited with your child? As you give information to medical health providers or banks or airlines, do you get the feeling you are being monitored? Sounds like the conspiracy theory to beat all urban legends. Read on...

In India the right to privacy debate on monitoring of communications was addressed by the Hon'ble Supreme Court of India in the PUCL case. This case dealt with the issues of telephone tapping and guidelines were prescribed on the procedure for issuing telephone tapping orders. These guidelines were adhered to while substituting Rule 419 A of the Indian Telegraph Rules, 1951 in March 2007. Thereafter, these guidelines were incorporated by the Government in the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 that prescribed the procedure to be followed while issuing orders for monitoring information on the Internet.

However, we see attempts being made by the Government to bye-pass these safeguards by means of a loop-hole in the Information Technology Act, 2000 (IT Act) and the rules notified in 2011 under the IT Act. To unravel this Gordian knot we need to refer to Section 28 of the IT Act. Under this section, the Controller of Certifying Authority (CCA) is empowered to investigate contraventions of the provisions of the IT Act. This power becomes potent when seen in the light of the Information Technology (Reasonable security practises and procedures and sensitive personal data or information) Rules 2011. When Section 28 is read with the proviso of Rule 6 of the aforementioned Rules: it essentially translates into the CCA having the power to obtain information, including sensitive personal information, from any company or body corporate, albeit at the request of government agencies. This power to obtain information from intermediaries is again explicitly provided under sub-rule (7) of Rule 3 of the the Information Technology (Intermediaries guidelines) Rules, 2011.

A reasonable reading of the title of Chapter VI of the IT Act (under which the subject of the Regulation of the CCA is dealt with ) seems to convey that this is an authority that deals with the Licensing of Certifying authorities that grant Electronic Signature Certificates. Until, of course, you read Section 28. Even then it does not amount to much until you dig further into the various rules that have been passed under the IT Act. So the question that comes up is: how can the government seek to deprive us of our right to privacy as simply as this. We have been asking this over and over again. These rules are made by the executive. They are made to help in the smoother functioning of any act of the parliament. However, at least, in the case of the IT Act they definitively override the mandate provided by the legislature. And so today the government agencies can seek any information regarding any person from a body corporate by sending a request to the CCA . The body has to oblige the CCA or face a stiff penalty. This incidentally is in violation of the law laid down by the Supreme Court of India on the right to privacy. It means any data belonging to you and me can be accessed by the CCA and in turn the government agencies.

So what happens if the body corporates refuse? Under Section 44 ( A) of the IT Act they can be slapped with asteep fine just as Yahoo India was. At the time of writing this blog, the case is sub-judice and hence it will be difficult to comment, but we at sflc.in wanted to find out more.

On January 10 2012 we sent an RTI to the Office of the Controller of Certifying Authority. We specifically requested for the following information:


  1. Number of requests received in the last three years, by the CCA from government agencies like the Intelligence Bureau , Ministry Of Home Affairs etc.

  2. Number of notices issued by the CCA under Section 28 of the IT Act in the last 3 years.

  3. Names of the recipients of notices under Section 28.

  4. Names of body corporates on whom a fine under Section 44 (A) has been imposed.
  5. Information on the methodology of scrutiny of requests from government agencies. Any rules or guidelines regarding the same.
We received areply to this RTI vide a letter dated February 8, 2012. We were told in this reply that as far as questions 1, 2 and 3 were concerned the CCA needed permission from the concerned government agencies to disclose this information . Further the response of the government agencies concerned was awaited. In response to question no. 4 we have been informed that only Yahoo India has been fined under Section 44 (A) of the IT Act. Question no.5 has elicited the response that matter concerning our query is in a confidential file and hence cannot be disclosed.

Further on March 2, 2012we received another reply to our RTI application whereby we were informed that as the CCA had sought approval from the concerned agency they could give us further information. This reply revealed that 73 ( seventy three ) notices were issued by the CCA under section 28 of the I.T. Act, in the last three years. This reply also informed us that notices have been issued to Yahoo India, Google, AOL, Facebook, Orkut and Hotmail.

While we at sflc.in shall follow the procedures provided by the Right to Information Act to find out more and dig a little deeper, it does surprise us that the CCA does not think that it is bound even by the Right to Information Act to disclose or refuse disclosure of information. Either that or our questions have made them uncomfortable and they have replied in the vaguest possible manner.

But if names like Yahoo, Google, Facebook, Orkut , Hotmail or AOL sounds familiar then we suggest you reread what is said above.

All Posts | Dec 12,2011

RTI Reply Reveals Delhi Government’s Plans to Monitor the Internet

Sflc.in after a long procedure involving multiple RTI applications and complaint before the Central Information Commissioner could get access to a copy of the draft Regulation (Control and management of internet information) 2010(sic) of the State Government of Delhi. This draft reveals the attempt of the government to legalise monitoring of information on the the Internet and this raises serious questions of surveillance in the light of therecent reports in the mediabased on spy-files released by Wikileaks.

Under this regulation the Secretary, Department of IT is authorised to issue orders regarding monitoring of information. The regulation provides for an Advisory Board that will approve the permissions issued pertaining to interception, monitoring and decryption of information. Also, it gives power to the Secretary (IT) to order the intermediaries to provide certain information for welfare of people. The regulation also gives the state government the power to install Internet content monitoring system.

After going through the Bill (yes, that is what the first page of the draft says), we have identified following irregularities and shortcomings -

1. The draft empowers the Secretary, Department of IT to issue orders regarding monitoring of information. However as per theInformation Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, in the case of a state government the Secretary in charge of the home department is the 'Competent Authority' to issue such orders and this competent authority may authorize an agency of the government to intercept, monitor or decrypt information. The Rules also provide for a review committee constituted under rule 419 A of the Indian Telegraph Rules, 1951. As per these rulesthe review committee to be constituted by a State Government shall consist of the following ; namely;


a) Chief Secretary. b) Secretary Law/ Legal Remembrance In charge, Legal Affairs,

c) Secretary to the State Government ( other than the Home Secretariat).

Thus, the state government's draft regulation contradicts the rules issued by the central government. As theInformation Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009specifically provide for a competent authority in the case of a state government as well as procedure and safeguards to be followed in monitoring, the need for such a legislation by the state government itself is unclear. Moreover, when the rules have a specific provision for a review committee, there is no requirement for the draft regulation to have a provision for constituting an advisory board.

The Hon'ble Supreme Court has held in Addl. District Magistrate (rev.) v. Siri Ram,(2000) 5 SCC 451,thatthe conferment of rule making power by an act does not enable the rule making authority to make a rule which travels beyond the scope of the enabling act or which is inconsistent there with or repugnant thereto. The draft regulation goes beyond the scope of the parent Act as Section 87 (2)(y) empowers only the central government to make rules regarding theprocedure and safeguards for interception, monitoring and decryption of information.

2. The provision in section (sic) 6 which mentions installation of contempt (sic) control solution with respect to chat room indices on the internet is a clear violation of a person's privacy because in the modern day chat is the quickest and one of the most effective medium of communication on which users share their personal and sensitive information and putting a tap on that is like tapping phones of each and every mobile phone user. Such a monitoring mechanism will be a clear violation of the right to privacy and against the Supreme Court's dicta on monitoring telephone conversations in the PUCL case.

3. Section(sic) 7 of the draft regulation makes it lawful for the state government to install internet content monitoring system. This is a dangerous situation that empowers the state government to listen to any transaction on the internet. This is all the more scary on account of therecent reports in the mediaregarding wire tapping of the internet by governments.

The draft regulations show the attempt of the Delhi government to have an Internet monitoring system which could pose a grave danger to the fundamental rights of citizens. The draft could be unconstitutional as it affects the right to privacy of citizens and could also be ultra vires of the parent Information Technology Act, 2000. The Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 provides sufficient powers to state governments to monitor internet and these rules also have adequate safeguards to protect the interests of the citizens. The attempt of the Delhi Government to introduce these regulations is an unwarranted exercise and is an intrusion on citizens' digital freedom .

All Posts | Dec 12,2011

Backdoor Censorship Alias Intermediary Pre-Screening

Kapil Sibal's diktat to social networking sites to pre-screen user generated content has generated a fresh debate on the issue of freedom of expression. The Minister in an interview to the Hindu clarified that the intention was to block incendiary communal material posted on these sites. The minister further insists on the need to have standards on content that will be considered acceptable. sflc.in has the following observations on the issue.

1. Why the government is not above the law?
The Minister's demand for pre-screening of user generated content is not supported in any way by any Act or Rule. The demand is nothing other than bullying these social media sites to submit to the Government's demands and is plainly illegal. Such an action by the Government will not be a "procedure established by law", be clearly arbitrary and will not stand judicial scrutiny. In an interview given to IBNlive on December 9, 2011, the minister clarified that " I want the solution today and not wait for a long legal procedure. Any legal remedy will be absolutely impractical." Seriously, when it becomes onerous, let's resort to bullying? He further insisted that "The platforms are failing to live up to the law that they are themselves enforcing in their own country," Exactly Mr Minister, which country's law are we subject to?

2. The act is against international norms and standards. Almost all democratic countries, from the members of the European Union to the US(DMCA & Communications Decency Act) follow the principle of providing intermediaries protection from liabilities arising out of user generated content. This is also the principle behind Section 79 of the Information technology Act, 2000. Frank La Rue, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in his report to the General Assembly states that "censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author".

3. Technical impossibility Social media sites like Facebook and Twitter and blogging sites like Blogspot and Wordpress have millions of users and is humanly impossible to pre-screen each and every post on these sites. A report on Economic times states the number of users of Facebook in India at 43 million while Twitter and Google + have 3.5 million users each. The content uploaded by this user base on these sites ranging from text to images to video is so huge that it would require a huge work force to monitor and pre-screen this content. It is estimated that there are 140 million tweets posted on twitter per day, 250 million photos are uploaded per day on Facebook and 48 hours of video are uploaded every minute on on Youtube. The pre-screening process will also require these sites to modify the software running them to provide for a monitoring mechanism. Thus, mandating pre-screening of content is a technical impossibility and making the intermediaries liable for non-compliance with such directives is highly arbitrary.

4. Pre-screening is unconstitutional
A major concern here is the direct effect that such a pre-screening will have on freedom of speech and expression of citizens. The Supreme Court has held in Bennett Coleman case that while considering the constitutionality of a statue "The true test is whether the effect of the impugned action is to take away or abridge fundamental rights". It is true that freedom of speech is not absolute in India when compared to the 1st Amendment provision in the US, and reasonable restrictions can be imposed on it under Article 19(2) of the constitution. However the Courts have held that'if any limitation on the exercise of the fundamental right under Art. 19(1)(a) does not fall within the four corners of Art. 19(2) it cannot be upheld'. Pre-screening of user generated content with its wide discretion of what could be considered unacceptable content will surely result in violation of the fundamental rights of free speech. The Supreme Court has held in Brij Bbhushan v State of Delhi 1950 AIR 129 that pre-censorship of news paper content is unconstitutional. This would hold true in the case of online media too as the Internet is now a medium for public debate and discourse.

5. Private entities cannot be saddled with adjudicative functions Asking Facebook or Google to decide whether any content is unacceptable is akin to asking them to adjudicate on a legal dispute. These entities are least equipped to decide what constitutes defamation or hate speech and hence there is every chance that they will err on the side of caution and censor content which could be perfectly legal. This will have a chilling effect on free speech as evidenced by the sting operation carried out by CIS.

6. Destroying the crops while clearing the weeds The act of curbing the freedom of citizens in the light of a few isolated alleged instances of defamation against the Congress president or the Prime Minister is unacceptable and goes against the basic ideals cherished by the framers of our Constitution. It has been held in Romesh Thappar vs The State Of Madras, 1950 AIR 124 that ..

"Thus, very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of the Federal Constitution," that "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.".

7. The right to have a dissenting view is important in a democracy.
The question of whether some content could be considered incendiary should not be based on how it could affect a person who is easily swayed. In the Tamas case the Supreme court held that the "effect of the words must be judged from the standards of reasonable, strong minded, firm and courageous men, and not those of weak and vacillating". The Government, here, instead of taking a firm stand on the issues of communal posting has in fact acted in a weak, yielding manner in trying to stifle freedom of expression altogether. Recently, there have been many instances of banning books or films on the flimsy reason that these could create law and order problems.

8. The intermediary rules are bad and this is worse The intermediary rules notified in April 2011 have resulted in back-door censorship of user generated content by its broad list of descriptions of unacceptable content that includes disparaging, blasphemous, grossly harmful and harassing. Various civil society organisation including sflc.in have been campaigning to get the rules amended and it is surprising to find that the Government has now gone one step ahead and come out with a proposal to pre-screen content. The rules by using vague expressions like blasphemous, grossly harmful, hateful and disparaging, without any legal basis in the parent act or other statutes, results in broadening of what is considered unacceptable content and forces the intermediaries to censor even legitimate content. The rules also affect the privacy of citizens by including provisions for government agencies to gain access to user information on a mere written request, without any safeguards against misuse, as mandated by the Supreme Court in the PUCL telephone tapping case. sflc.in has submitted a representation to the Parliamentary Committee on Sub-ordinate legislation which would review the rules.

We hope that the Government would reconsider the proposal and engage with various stake-holders to keep the Internet free and open.

All Posts | Dec 10,2011

Thank You Mr Sibal!

We at SFLC.in , have been crying ourselves hoarse, on the Government Of India's clamp down on Freedom of Speech and Expression since April 2011 . Why April? In April, the Central Government notified the new Information Technology ( Intermediaries Guidelines) Rules . These Rules cast an obligation upon an intermediary to remove any content which may be unlawful, blasphemous, libellous, grossly harmful, harassing or disparaging. This removal of content was to be done on receiving a complaint by an affected party.

It bothers us. In our view, it is unconstitutional , arbitrary, and downright Orwellian. We think the right to freedom of expression is under threat. Sounds like a conspiracy theory, doesn't it? But as a bunch of professionals working in the area of electronic civil liberties, we don't think so. We also realize that most internet users could not grasp the significance of these Rules owing to the legalese involved.

Along comes the Union Minister ( and we swear we did not bribe him). He does in one press conference what we have been trying to do for the past nine months : Bring the issue of the Big Brother censoring the internet, into public cognizance.

Mr Sibal as reported in "The Hindu" ( 6 , December 2011) met senior functionaries of You Tube, Facebook, Google and Yahoo and a few others ( but the media reports completely ignored to cover other invited parties)asked them to evolve a mechanism to filter "disparaging" content related to politicians and religious figures. Though, in all honesty what the Hon'ble Minister has proposed is beyond the Rules itself. Although the deamnd is very different from the already allowed backdoor censorship through IT rules promulgated in April 2011, Yet, in a way, it illuminates the issue of pre-censorship on vague grounds. Thankful as we are to Mr Sibal, we would still like to know more about his meeting. In order to obtain this information we sent an RTI Application on the 6thof December,2011, itself, asking for :

  1. Copy of the minutes of this meeting;

  2. Details of the steps suggested by the Government to these websites on screening and filtering such content;

  3. File notes if any, prepared in connection with this meeting.

This RTI application has been sent to Department of Information Technology and Department of Telecommunication. Why have we sent it to two departments? No, we are not jobless. It has been our experience that Ministries in the Government are RTI dodgers par excellence. So, its best to seek information from all concerned departments to uncover more about this meeting. Watch this space for further information.

All Posts | Nov 28,2011

Wikipedia – Bringing Free Knowledge to Everyone

Where the mind is without fear and the head is held high
Where knowledge is free... - Rabindranath Tagore

Wikipedia is a truly amazing project which aims at making the vast pool of knowledge available to everyone for free. sflc.in was part of the Wiki Conference India held in Mumbai from Nov. 18- 20, 2011. The conference was scheduled to start with a session by Jimmy Wales at 8.30 AM on the first day. On reaching the Fort campus of Mumbai University, the venue for the conference, I was surprised to see battalions of policemen and mandatory security checks. On talking to organisers I came to know that the youth wing of Bharatiya Janata Party had called for a protest against the unofficial maps used in some Wikipedia articles. Fortunately, there were no untoward incidents during the conference except for some brief slogan shouting outside the venue on the first day.

Jimmy Wales's session saw the huge convocation hall of the Mumbai University overflowing with delegates, and Jimmy Wales remarked that it was the biggest gathering that he has seen at any Wikipedia conference including the Wikimania, the annual Wikipedia conference. In his presentation he stressed on the opportunities in the regional language Wikipedias and also stressed on the need to improve the Mediawiki software so that it is easier to edit articles.

The best part of the conference was the opportunity it presented to interact with members of the community. There was sizeable representation from the various language communities from Marathi to Gujarati, Tamil, Malayalam and Nepali. It was a good opportunity to introduce the concept ofFreedom Box to the developers among them and I distributed a fewflyers on the project. It was indeed a joy to find that most of them were aware of the project. I do hope more start contributing to the code soon so that the world will soon will have privacy protected and easy-to-use communication systems.

Panel

 

 

On the second day I was part of a panel thatdiscussed "". The panel consisted of Anja Kovacs from the Internet Democracy Project, Raman Jit Singh Chima from Google, Arjuna Rao Chavala, President of the WikiMedia Chapter and Prof.Shishir Jha from IIT Mumbai. The panel discussed the issues ranging from freedom in the net, the effect of the recently notified IT intermediary rules on Wikipedia and Freedom Box to Creative Commons licenses. The panel explained how the recently notified IT rules could create legal risks fro Wikipedia and have chilling effects on freedom of speech. There was good participation from the audience too, although time constraint forced us to limit the number of questions form the audience.(Thanks to Rahul Matthan for the picture)
On the third day, it was really a pleasant surprise to listen to Achu Kulangara, a 10 year old Wikipedia editor presenting on Wikipedia at schools. The conference was a learning experience listening to keynote address by Barry Newstead, technical panel discussions moderated by Sumana Harihareswara, editing tutorial by Ashwin Baindur, presentation on gender gap issues by Harriet Vidyasagar and other panels and presentations on a wide range of topics. The conference showcased the strength of the Wikipedia community in India and their belief in the mission to make knowledge accessible to all.

All Posts | Jun 23,2011

The Caravan Injunction And How the New IT Rules Could Make It Easier for the Arindams of the World

The Caravan magazine issued a press release yesterday on the defamation suit filed by Indian Institute of Planning & Management(IIPM) against it for publishing a cover story on Arindam Chaudhury, Director of IIPM, in the February 2011 issue. The suit is filed against the magazine, Siddhartha Deb, the author of the story, Google and Penguin, the publisher of the forthcoming book, from which the article is extracted.

The magazine had to remove the article from its web site as an injunction order was passed by the Civil Court in Silchar, Assam restraining the magazine from maintaining the article in their website. The case is interesting, particularly in view of the article by Arindam Chaudhuri in "the Sunday Indian" titled "Internet Hooliganism", in which he welcomes the new Information Technology (Intermediaries guidelines) Rules, 2011 notified by the Government as it seeks to control the intermediaries and blogs. The author says "...it is not just bloggers with malicious intent, who will get dragged to the table of interrogation. Even intermediaries like all search engines and websites (which would include Google, Wikipedia, or even online payment & auction sites, social networking sites and hosted blogs), Telecom and Internet Service Providers (ISPs) and even cyber cafes, will be held liable for all harm caused to the party - individual or a body of individuals - which has lodged a complaint..."

In the Caravan case, IIPM had to approach a Court and obtain an injunction to get the article taken off from the website. The new IT rules make it so much easier for any person to get any content, which is not in his interest, to be removed from the web. The intermediary, who could be a hosting provider, a blog platform, a social networking site or an ISP will have to remove the content within 36 hours of receiving a complaint from any person regarding content posted online. In the current case, IIPM could have approached the hosting provider to get the content removed. This could soon become a censorship mechanism by which anybody who is not happy with a report on corruption, malpractice or a business fraud reported in any online magazine or blog or even a forum, could soon get it removed by filing a complaint with the intermediary. The user who posted the content does not have a remedy to get the content restored, and this makes the rules biased against the content creator. The provision for removal of content without the involvement of any judicial process has strong possibility of misuse and could severely affect the freedom of speech and expression of citizens in online media.

The quote attributed to Voltaire - "I detest what you write, but I would give my life to make it possible for you to continue to write" - encapsulates the spirit of democracy and freedom of speech. Freedom of speech and expression as well as the freedom of press are the basic foundations of a democracy and as India experienced during the period of emergency, curtailment of this freedom, could have grave consequences for a democracy. Posting of defamatory content or any unlawful matter online cannot be allowed, but at the same time, whether an act is unlawful or not has to be decided by a court of law and cannot be decided by an intermediary. Censorship of content, in any form, does not augur well for a democracy, and has to be resisted, especially when carried out by non-state actors.

All Posts | Apr 28,2011

Censored by the Intermediary

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."