IT rules for intermediaries: chilling effect for free speech on the Net

IN Media Freedom | 29/04/2011

From harassing, disparaging and blasphemous to anything that threatens the unity, integrity, defence or public order - the ambit of the new Information Technology rules is vast and arbitrary,

and the effect for free speech is chilling. A Free Speech Hub comment.

The long-awaited rules for Sections 6A (electronic service delivery and electronic signatures), 43A (reasonable security practices) and 79 (guidelines for intermediaries and cyber cafes), which were notified on April 11, only confirm the fears voiced by civil society – that the draconian provisions of the amended Information Technology Act, 2000, can seriously hamper freedom of speech and expression.

As it is, the Free Speech Hub had already written about the draft rules and the blocking of websites, pointing out the complete absence of checks and balances for the powers given to authorities like CERT-In (Computer Emergency Response Team).

The draft rules for these sections were put up in March and comments and objections were invited for these but it is clear that the government has taken little cognisance of these, preferring to notify the draft rules without engaging in any discussions either.

Earlier, the rules for Sec 69 (interception, monitoring and decryption of information), Sec 69 A (blocking), Sec 69 B (monitoring of traffic data or information) had already been notified and the role and responsibility of the intermediaries clearly outlined. The latest rules reinforce the outlook of the policy-makers: that it is the intermediaries who must observe due diligence (Sec 3 of the rules for Sec 79) and will be held to task for any perceived violation ranging from information that 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.

With this wide-ranging and entirely arbitrary set of potential violations, the potential for misuse is also immense. In its comments submitted in response to the draft rules, Privacy India and the Centre for Internet and Society pointed out that Sec 79 (1) and (2) of the amended IT act itself did provide for exemptions for third party liabilities of intermediaries, something that the rules have now virtually set aside.

Other comments submitted by these organisations about security and privacy of cyber cafe users deals with minors and with the general architecture of cyber cafes. In the first instance, the organisations expressed concern that undue restrictions on the use of the internet by minors (photo identity cards, accompanied by adults etc) would hamper their access to the internet and would be actually discourage poorer children from using the ‘net. In the second instance, the detailed restrictions on the layout of the cybercafés – the height of cabins and the directions of the screens etc would, they felt, be intrusive and violate the privacy of internet users in cyber cafes. Besides, vulnerable sections like sexual minorities or HIV positive patients may even be open to identity theft, they feared.

The rules, needless to add, address none of these fears.

In the guise of setting down provisions for stronger intelligence mechanisms, governments across the world have also sought to regulate dissent. The amended IT Act itself was passed in a hurry a year after the November 26 attacks in Mumbai in 2008.

At the heart of the government’s attempt to regulate the internet, is a paternalistic approach that seeks to protect citizens from themselves. In the absence of any accountable mechanisms for the powers it gives itself, the potential for misuse is immense. Instead of its current closed-door approach, the government must have much more discussion and transparency with civil society on the measures it adopts.

Meanwhile, cyberactivists and journalists have written a number of articles criticising the new IT rules. Here are a few:

Writing in the Indian Express, cyber lawyer Pranesh Prakash says that ‘many of the provisions of these rules have no rational connection with the due diligence to be observed by the intermediary to absolve itself from liability. Besides, he adds, cybercafe rules also require that all of them install “commercially available safety or filtering software” to prevent access to pornography. But such software is not effective and if it is the child’s impressionable mind, parents need to do the supervising, not the government, he adds.

Read more: Free as in Free Speech

Writing in The Hindustan Times, N Madhavanif there are people who judge what is right or not at the level of a ministry or a government department”. He calls for a self-regulatory initiative amongst web publishers and bloggers, much like the broadcasting bodies. fears that a robust debate will not be possible on the net ‘

Writing in Indiatechonline, Anand Parthasarathy says that two changes in the draft and the notified rules have ‘toned down some of the more controversial parts of the draft, removed the provocative inclusion of blogs and bloggers in its ambit and recognized the possibility that transgressions could be unknowing or the result of automatic, that is non human, editorial selection.