We are committed to free speech, says Indian government!
The Indian government’s clarification on the curbs on intermediaries seeks to reassure critics of the IT rules,
But will this suffice, asks GEETA SESHU
Responding to a number of articles in print and online media on the draconian provisions of the Information Technology rules under the Information Technology Act 2000, the Indian government has stated that it is fully committed to freedom of speech and expression and citizen’s rights in this regard.
In a press release issued on Wednesday, May 11 by the Department of Information Technology (DIT), Ministry of Communications & Information Technology, the government has stated that it does not intend to ‘acquire regulatory jurisdiction over content under these Rules’.
Specifically addressing the concerns voiced in the media about the rules regarding Sec 79 of the rules which pertain to the liabilities of intermediaries, the press release stated that the two issues raised by various news-items were that ‘words used in Rules for objectionable content are broad and could be interpreted subjectively’ and that ‘there is an apprehension that the Rules enable the Government to regulate content in a highly subjective and possibly arbitrary manner’.
Under these rules, intermediaries can be held responsible for a wide range of content - anything from disparaging to obscene, grossly harmful, harassing, blasphemous, defamatory, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, 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.
The government however says that “the terms specified in the Rules are in accordance with the terms used by most of the Intermediaries as part of their existing practices, policies and terms of service which they have published on their website”. The statement adds that in case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or an affected person, the same can only be adjudicated by a Court of Law. “The Government or any of its agencies have no power to intervene or even interpret,” the statement added.
The Department of Information technology has reiterated that the Government has no intention of acquiring regulatory jurisdiction over content under these Rules. It has categorically said that these rules do not provide for any regulation or control of content by the Government.
It goes to claim that the government adopted a very transparent process for formulation of the Rules under the Information Technology Act. “The draft Rules were published on the Department of Information Technology website for comments and were widely covered by the media. None of the Industry Associations and other stakeholders objected to the formulation which is now being cited in some section of media.”
The government did invite objections and did get objections to the rules. However, none of the objections have been put up on the Department of Information Technology website so we are really none the wiser on the government’s claim.
Intermediaries are asked to take down content within 36 hours, again something that raised the hackles of cybermedia activists. In its press release, the government does not address this directly. When its statement says that issues arising can be addressed only by a court of law, it is unclear whether this will be before or after any so-called offending content is taken down. Ideally, if there is any dispute about any content is deemed offensive or attracts the provisions of Sec 3 of rule 79, there must be some way of adjudicating the matter before taking it down. But the onus is clearly on the intermediary to ‘act’ within 36 hours to disable the information.
Here’s what Sec 4 of the rule states:
(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes.
Pranesh Prakash, lawyer and Programme Manager with the Bangalore-based Centre for Internet and Society, told the Free Speech Hun said that the approach was based on the assumption that the person who had a problem with the content was the affected party. “What if we reverse this process- if there is a problem, the person with the problem can approach the court. The court can then decide if the person’s grievance is valid or not.”
Besides, Prakash pointed out, the government’s claim that it had adopted a transparent process in drafting the rules, was a ‘blatant lie’. Several organisations, including his own, had filed their objections to the rules. However, the DIT has not seen fit to even publish the objections on its website, much less address them in any way, he said.
Meanwhile, Google, in a statement on Wednesday, expressed apprehensions about the rules. The company said: “We believe that a free and open Internet is essential for the growth of digital economy and safeguarding freedom of expression. If Internet platforms are held liable for third party content, it would lead to self-censorship and reduce the free flow of information. The regulatory framework should ideally help protect Internet platforms and people’s abilities to access information.”
A Google spokesperson told The Free Speech Hub: ‘We would also like to underline that we participated in an open and public consultative process that included contributions from many others including industry associations and civil society organizations.’
Obviously, the government will have to try much harder to reassure its denizens that it will walk its talk. Other objections to the IT rules include provisions controlling cyber cafes, personal data and monitoring, interception and blocking of websites. The government sure has a lot more clarifying to do!
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here for full text of the press release