'Unconstitutional and administratively burdensome'
Information Technology (Intermediaries Guidelines) Rules, 2011 – An Analysis
Introduction
The Government notified the Information Technology (Intermediaries Guidelines) Rules in April 2011 prescribing guidelines for the intermediaries. However these Rules raise serious concerns since neither the service providers nor the end users are able to understand the extent of their rights and duties due to the ambiguous and unexplained nature of the terms constituting unlawful content under these Rules. Concerns were also raised by users as to how the Rules could adversely affect their rights to freedom of speech and expression.
In order to address these issues, SFLC.in has carried out extensive empirical as well as doctrinal research regarding the constitutionality of these Rules and the way it affects the users and intermediaries. This was done by way of organizing Round-table consultations in New Delhi, Bangalore, Cochin and Mumbai, which helped in compiling and analyzing varied views from cross-sections of the society pertaining to the safe harbour regime. We also did a comparative analysis of such protection provided in other jurisdictions.
Excerpt
The rules – opinions of users and businesses
The users as well as the industry have criticised the Rules for the provisions that affect freedom of expression of citizens as well as the ability of businesses to operate and provide online platforms for sharing content. The following issues have emerged from the consultations held by SFLC.IN.
Uncertainty regarding prohibited content
The ambiguous words used in Rule 3(2) on the nature of content that should not be posted by users make it difficult for the users as well as for the intermediaries to determine the type of content that will be classified as objectionable. Words and phrases like grossly harmful, harassing, blasphemous, disparaging and 'harm minors in any way' are not defined in these Rules or in the Act or in any other legislation.
These ambiguous words make the Rules susceptible to misuse. Such ambiguous terms have a chilling effect on free speech rights of users by making them too cautious about the content they post and by forcing them to self-censor. This will have an adverse impact, especially on political discourse and views critical of acceptable mainstream ideas. A major casualty of such Rules could be discussions on sexuality, gender rights, rights of lesbians, gays and trans-genders, criticisms of religious practices and honest political discourse. The absence of such discussions is detrimental to the healthy functioning of an open and honest society and will sound the death knell of democracy. This is evident from the reported instances in the short period in which the Rules have been in operation.
Mouthshut.com, India's leading consumer review website revealed to SFLC.IN that they receive a large number of take-down requests from businesses to take down unfavourable reviews posted by customers. Faisal Farooqui, CEO, MouthShut.com said that they have received a number of notices from law enforcement agencies under Section 91 of Cr.PC and that there were instances where they were sent fake court orders demanding take down of content.
The Centre For Internet and Society, a non-profit organisation based out of Bangalore, as part of the research study, sent a number of take-down requests targeting perfectly legal content and six out of seven intermediaries over-complied with the notices. In another instance, the website cartoonsagainstcorruption.com was taken down by the domain registrar, Big Rock (Big Rock has explained their stance on the issue in the blog post available at http://bigrock.com/blog/general/cartoonsagainstcorruption-combigrocks- stance-and-a-sequence-of-events) on receiving a legal notice from the Cyber Police Station, Crime Branch, CID, Mumbai by relying on the provisions of these Rules.
In yet another instance, Vidyut Kale, a blogger, was served a legal notice under the Rules asking her to take down a post that she had written about a corruption scandal. Although a blogger will not come under the definition of an intermediary in this instance, this incident clearly shows how the Rules are susceptible to be used to restrict the freedom of users to voice opinions.
Although we tried to get information on content taken down by major intermediaries like Facebook and Google, we were not provided this information and were requested to get information from their transparency reports. However these reports do not provide much information about take downs due to requests from private individuals and mainly provide consolidated numbers of take-down requests from Government agencies.
Intermediaries, who have to make decisions as to whether any complaint about content posted falls under these categories of content, are often constrained by the use of ambiguous terms and are forced to take the safe course of taking down all content - the removal of which has been requested.
Rights of content creators
The take-down mechanism under the Rules does not provide any recourse to the creator of content whose content has been taken down on the basis of a complaint. There are no provisions that make it mandatory to inform the content creator of the removal of content posted by her.
No Information Mechanism
The content-creator need not even be informed about the complaint by the intermediary and she does not get a chance to state her case and to object to the take-down. Sometimes, for days, the content-creator has no inkling that her content has been removed.
No Redressal Mechanism
The Rules do not have any redressal mechanism for the content-creator who is aggrieved by a wrongful take-down of content. The Rules do not have a put-back mechanism to restore the content that may have been wrongfully or mistakenly taken-down. Considering the importance of the Internet and the platform it provides for citizens to voice their opinions and participate in the current discourse, the freedom of expression of users will be severely hampered if their content is taken down by the intermediary on receipt of a take-down notice without any recourse.
Adjudicatory role to intermediaries
The intermediaries are obliged to take a final decision on the lawful nature of the content posted. The Rules do not have a provision mandating the complainant to get a court order.
The Rules in the current form do not have a provision for judicial scrutiny. This is in stark contrast with the provision in the amended Copyright Act, which necessitates production of a court order within a period of twenty one days on take-down of an allegedly infringing content. No justification is forthcoming on this discrepancy.
The take-down of content should, at best, be an interim measure to protect the interest of the aggrieved party with the courts having a final say.
Operational difficult for Industry
The Rules by mandating an adjudicatory role for the intermediaries have made it difficult for various websites for example, customer review sites to operate. In a country where consumer protection laws are difficult to enforce, where the common man is duped everyday, websites enabling views and reviews about goods and services provide an important public service.
Business model of these websites centres around the freedom of users to express honest views of products and services and frequent take-down of content and sanitized reviews will make customers reluctant to use these services, thereby affecting their business. The ambiguous words used in the Rules compound the problems of these sites by making them err on the side of caution and to even take down content that is not unlawful.
The consultations held by SFLC.IN revealed that many of the businesses were not aware of the clarification issued by the Government on the time period within which they have to take action and they considered it mandatory to take down the content within a period of thirty-six hours on receipt of notice. The Hon'ble Delhi High Court while passing an interim order dated March 30, 2012 in Nirmaljit Singh Narula v. Indijobs at hubpages.com & Ors. (190 (2012) DLT 51) held that “Rule 3(4) of the said rule provides obligation of an intermediary to remove such defamatory content within 36 hours from receipt of actual knowledge.”
The Hon'ble Court went on to restrain the intermediary, hubpages.com, from hosting any defamatory content about the plaintiff and if the order is not complied within 36 hours to get the website blocked. Although this order was passed before the clarification was issued by the Government, it clearly shows how the Rules are often interpreted.
At the consultation held in Mumbai, MouthShut.com informed the attendees that they were getting an unusually large number of notices from builders, banks and other commercial establishments who want negative reviews about their organisation to be taken down and that such notices are often followed by court cases if they do not take down the content. MouthShut.com stated that they are forced to defend cases across the country and that their legal expenses have gone up. They said that they have received 790 take down requests, 240 legal notices and were fighting 11 court cases, as on that date.
Privacy of users
In the wake of the recent disclosures about arbitrary surveillance of users, Rule 3(7) of these Rules that mandate the intermediaries to disclose private information of users on getting a written request alone from any investigative agency is problematic as the law enforcement agency can access user records without complying with any safeguards to protect user privacy as provided in the Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. Such over-broad provisions without adequate safeguards could result in violation of the right to privacy of users.
The Controller of Certifying Authorities had resorted to Rule 3(7) of the Rules to demand Yahoo India Pvt. Ltd. to hand over user data. Yahoo India Pvt. Ltd. challenged the action of the Controller imposing a fine for not revealing user data as well as Rule 3(7) of these Rules before the Hon'ble High Court of Delhi (Yahoo India Pvt. Ltd. V Union of India & Another, W.P.(C).No. 6654/2011).
The Hon'ble High Court allowed the writ petition by setting aside the order of the Controller and leave the question open on the challenge to Rule 3(7). Mouthshut.com revealed during the Round Table Consultation held by SFLC.IN that they have received requests from law enforcement agencies to reveal user information, often citing alleged non-cognizable offences like defamation.
Conclusion
The Intermediaries Guidelines Rules in their current form are unconstitutional and administratively burdensome with no support for the user base.
The authorities are well equipped by the IT Act to block any objectionable information in the interest of national security or public order, rendering private censorship efforts such as those embodied by the current Rules superfluous. In 2012, while urging the revision of the language of these Rules, Mr. Arun Jaitley, Union Minister of Finance and Defence, Government of India, had aptly observed that overly broad restrictions on the permissibility of on-line content constitutes a threat to free speech.
The Rules need to be amended by removing unconstitutional restrictions on free speech, adding a counter-notice and put-back provision so that the rights of content-creators are protected. The final decision on whether content is unlawful should be made by the judiciary. The provision for law enforcement agencies to access user-data should be removed from these Rules as such provisions exist in other statutes.
In India, the spread of mobile phone has been a truly revolutionary phenomenon and has made communication possible across the length and breadth of the country. The availability of Internet on mobile as the figures released by TRAI shows could be the be the driving factor for Internet adoption in the country. New models similar to CGNet Swara could evolve making it easy for anyone, even the illiterate, to contribute content on the Internet. This could lead to greater transparency and accountability in governance and better access to knowledge.
As technology evolves at a fast pace, the law should not be found wanting. The law should be an enabling factor that ensures that citizens enjoy their right to freedom of speech and expression without any hindrance. India, being the largest democracy in the world should lead the world in ensuring that the citizens enjoy the right to express themselves freely online.
(Software Freedom Law Centre, India (SFLC.In), is a donor supported legal services organisation that brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world.
(Click here to download full report)